Leveraging the Laboratories of Democracy

Article 1 of the United States Constitution gives states the power to oversee federal elections. Though federal laws and Constitutional amendments outline some standards for administering elections, most election laws are left to state and local governments.^[1] While this system of federalism has been a source of strength for our democracy, it has also allowed states to pass election laws that have disenfranchised millions of people. Until the 1940s, it allowed states to maintain de jure racial restrictions to voting, such as the South’s White Primary, which barred non-white voters from participating in primary elections. And until 1965, it allowed states to uphold de facto barriers to participation, such as “poll taxes, literacy tests, residency requirements, and burdensome registration procedures” that “served to diminish black voting opportunities.”^[2] Still today, our system of federalism allows states to pass election laws that restrict access to the ballot and disproportionately disenfranchise minority communities.^[3] However, Article 1 allows states to act as “laboratories of democracy” and experiment with different election laws that can bolster participation and reduce political inequality that the system itself helped create.

Voter registration policies are a perfect example of this type of experimentation. In 2015, Oregon became the first state to implement Automatic Voter Registration, an innovative policy that attempts to change voter registration at government agencies, such as the Department of Motor Vehicles, from an opt-in to an opt-out system. In states without AVR – or “opt-in” states – eligible citizens can register to vote at the DMV by taking the time to request and fill out a voter registration form. However, states have been inconsistent in ensuring that eligible citizens have this opportunity; a 2014 study by The Pew Charitable Trusts concluded that virtually no state could “document the degree to which their motor vehicle agencies were offering citizens the opportunity to register to vote or update their registration.” And many people do not take advantage of this opportunity, as they want to minimize the amount of time spent at the DMV. Automatic Voter Registration attempts to remedy these problems by integrating voter registration at the DMV into other transactions. In states with AVR – or “opt-out” states – eligible citizens are automatically registered to vote, unless they decline, whenever they interact with the DMV or another qualifying government agency.

This policy has effectively increased registration rates in Oregon, which is particularly significant because registration – an administrative barrier that was “developed in the 1800s as a tool to suppress voting by minority groups and immigrants”[4] – kept an estimated 3.6 million citizens from voting in the 2018 elections.^[5] More importantly, the policy has increased registration rates among those groups whose voice registration was developed to suppress.^[6] In the wake of Oregon’s AVR program, more states have undertaken efforts to implement the policy. To date, 16 states and the District of Columbia have adopted AVR.^[7] States have, however, implemented different versions of AVR. This experimentation with different models of AVR exemplifies how states can act as “laboratories of democracy” and demonstrates what federalism can be at its best: a system that allows states to design and test solutions for remediating our nation’s history of disenfranchising its citizens.

But many of the states that have implemented AVR are failing to live up to this ideal.

Every laboratory needs data to test its experiments. In order to evaluate each state’s AVR program and make comparisons between different models, states must (1) provide detailed descriptions of their AVR programs (2) collect data on their AVR programs in an organized and uniform way and (3) make all of this information available to the public. Out of the 16 states that  have adopted AVR, only three – Oregon, Alaska, and California – supply detailed descriptions of their AVR programs on their websites. Out of the nine states that have been using AVR for at least a year, Oregon and California are the only states to have released detailed data reports on their AVR programs. Some states do not track any AVR data at all. This lack of data makes evaluating different models of AVR extremely difficult. No researcher – whether in a lab or in the field – can understand the outcome and implications of an experiment without collecting data. In the same way that a doctor cannot evaluate a treatment’s effectiveness without tracking a patient’s vitals and symptoms, a policymaker cannot evaluate the effectiveness of AVR without tracking its impact on registration rates and voter turnout.

One important way to measure AVR’s effectiveness is by comparing the rates at which eligible citizens opt-out of being registered. It’s fairly straightforward: the lower the opt-out rate, the higher the rate of registration and the more accurate the state’s voter registration files. Over time, a higher registration rate means greater participation. However, some states do not track opt-out rates, and those that do are inconsistent in how they record them; opt-out rates may include non-citizens in one state but exclude them in another. Without publicly accessible and consistent data on AVR – such as opt-out rates – researchers, policy practitioners, and elected officials cannot learn from the states that have experimented with AVR. They are limited in their ability to determine which model of AVR will work best in other states and at the federal level.

Our system of federalism has allowed states to implement policies that exacerbate inequality and hold our democracy back. But it also allows states to introduce and test innovative policies that could move us forward as a nation. Oregon’s passing of AVR in 2016 is a perfect example. Since then, numerous states have implemented different models of AVR in an effort to ensure that all citizens can participate in our elections. In order to understand how AVR works best, and for detailed comparisons to be made between these models, states must coordinate their efforts to evaluate and publicize the effectiveness of their AVR programs. States have a responsibility to ensure that the policies they implement produce the intended results. As “laboratories of democracy,” they must collect and release data that will allow policymakers to determine which form of AVR will make our country’s democracy as fair and participatory as possible.

^[1] https://www.usa.gov/voting-laws

^[2] Fraga, Bernard. The Turnout Gap (Cambridge University Press, 2018): 30-32.

^[3] https://fivethirtyeight.com/features/what-we-know-about-voter-id-laws/

[4] Fraga, Bernard. The Turnout Gap (Cambridge University Press, 2018): 49.

^[5] https://www.nonprofitvote.org/bureaucracy-voter-registration-prevents-millions-voting/

^[6]https://www.americanprogress.org/issues/democracy/reports/2017/06/07/433677/votes-automatic-voter-registration/

^[7] https://www.brennancenter.org/analysis/automatic-voter-registration