The National Voter Registration Act turns 30 this week. Most know it as Motor Voter, and no other federal law has impacted American elections more, except perhaps the Voting Rights Act of 1965.
After Motor Voter was vetoed by President George H. W. Bush in 1992, President Bill Clinton made it a top legislative priority in early 1993.
The Constitution gives power to the states to set rules for voter registration, unless Congress decides otherwise for congressional elections. In 1993, Congress used the Constitution’s extraordinarily expansive powers over the “time, place and manner” of holding congressional elections to nationalize not only voter registration, but also voter roll list maintenance by state officials.
Three decades later, we can see what Congress got right—and got wrong.
Congress got some parts of Motor Voter right. It has never been easier to register to vote and to vote as it is in 2023. Motor Voter made that possible.
Whenever someone registers or changes a driver’s license, voter registration is part of that process. Voters also can change records other times they talk to local and state government. This doesn’t always work as intended, as we shall see, but it has made it so easy to register that the tiresome complaints about voter suppression seem almost comical.
Other provisions increase election transparency. Section 8 of Motor Voter establishes a federal right to publicly inspect election list maintenance records. You can walk into an election office and look at election records related to the maintenance of rolls.
Motor Voter also created a federal mandate on state and local election officials to conduct a “reasonable” program that keeps voter rolls free of those who have died or moved away. If election officials fail to meet that federal obligation, they may be sued and even subject to paying the attorneys’ fees of the plaintiffs.
This provision was then-Sen. Robert Dole’s, R-Kan., amendment to Motor Voter, and it was the compromise that broke the Senate filibuster preventing passage 30 years ago.
Yet for essentially two decades, the Dole amendment gathered dust. No party used the power to sue states for failing to keep rolls clean until the second term of the President George W. Bush administration, when the Department of Justice brought a couple of cases. No private party sued until the last decade.
Over the last 10 years, private parties have brought scores of actions under Motor Voter to make our elections more efficient, cleaner, and more transparent.
While Congress got these parts right, it got a lot wrong in 1993.
The biggest failure of Motor Voter—or success, depending on your political persuasion—is that Motor Voter has helped noncitizens get registered to vote. This has jeopardized the immigration status of noncitizens who unwittingly register because of the ease of the process.
If an applicant fills out the federal Motor Voter registration form, they must be registered to vote, period.
States cannot seek documentary proof of citizenship before registering the applicant, unless the state goes through a complicated process of seeking federal administrative approval of adding state instructions to the federal form, which has never been granted. As it stands, only an honor system prevents foreign citizens from easily registering to vote. All they need to do is mark the box “yes” that they are a United States citizen.
Worse, I have collected sizeable numbers of federal voter registration forms where the applicant marks the citizenship box “no,” and yet is still registered to vote. It’s no wonder that most noncitizen registrations are taking place through motor vehicle departments.
Motor Voter’s obligation to have a reasonable program of voter roll cleanup is limited to keeping voter rolls free of the dead and those who have moved away. Oddly, Congress did not extend this cleanup obligation to ineligible noncitizens or those disqualified under state law, like felons in some states. Congress must fix this oversight.
Motor Voter states that a registrant cannot be immediately removed from the rolls unless written documentation makes clear they have moved away. Some states consider a subsequent voter registration in another state adequate documentation allowing immediate removal in the first state. Other states disagree and permit the original registration to remain active for sometimes eight years in the first state.
We know also that Motor Voter has produced some disasters. In Pennsylvania, for example, state election officials admitted to a glitch that for over two decades permitted at least 10,000 foreign nationals to register to vote. We still don’t know how high the number went.
Motor Voter is showing signs of wear. It has made American elections on one hand less secure, while on the other hand, more transparent. It created unforeseen consequences and failures worse than the opponents imagined. After 30 years, it is time for Congress to do a serious and thoughtful reexamination of a law that impacts American elections like no other.
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