Democracy's Bureaucracy: The Complicated Case of Voter Registration Lists

Abstract

Voter registration is foundational to our elections. Today, all states but one require voters to register to vote. Yet voter registration lists are often inaccurate — many people remain registered at their former address — and incomplete — between a quarter and a third of the country is not registered to vote.

This Article calls attention to how federal and state actors have cobbled together a novel administrative structure, both within and across states, to gather updated information about a voter, from their new address to their death. It argues that understanding the unique inter-jurisdictional dynamics of voter registration — where a national electorate is split by local administration — helps explain why elections are vulnerable to distrust and how to build a more inclusive electorate.

The Article weaves together election law and political science to critically analyze the frontier of election administration. Part I traces the rise of national, but not federal, efforts to manage voter registration within and across states. It offers the first comprehensive account of the Electronic Registration Information Center, a non profit corporation in which a bipartisan group of more than thirty states serve as the Board of Directors and share voter registration records. Building on prior empirical work, Part II illustrates how systemic vulnerabilities in the federal framework for election administration have offered a foothold for the partisan narrative of voter fraud, partly due to the under-appreciated and unintended effect of federal privacy protections. It explains how state voter registration lists are siloed; how an integrated approach to list maintenance, using confidential records, comes at the expense of public oversight; and how private interest groups, engaging in what this Article terms “vigilante list maintenance,” are exploiting public, but incomplete, access to administrative records to fuel distrust. Part III proposes a new federal framework — for both election law and privacy law — to both fortify list maintenance and expand its ambitions. It resists a narrow understanding of list maintenance as disenfranchising — captured by the term “voter purging” — and proposes expanding the government’s obligation to update, rather than cancel, registrations as voters move.