Elections Should Not Be Conducted in Darkness
This week, the Public Interest Legal Foundation filed two federal lawsuits in Minnesota and Wisconsin to end these states’ special exemptions from a federal election transparency law.
Congress decided three decades ago that transparency is an essential component of any election infrastructure. That’s why the National Voter Registration Act, usually called “Motor Voter,” deemed all records related to who is eligible and not eligible to vote to be public records–except in six states. These records include voter rolls, removal records of individuals who were found to not be citizens of the United States and many more key records that often reveal mistakes by election officials.
Transparency in election administration allows the public to understand the activities of officials who grant and remove voting rights. Making the list-maintenance process public increases trust and confidence in our electoral process. Transparency enables the public to see when election officials are making mistakes. It also allows voters who are improperly removed from the rolls to find out why.
Six states—New Hampshire, Wisconsin, Minnesota, Wyoming, North Dakota and Idaho—get a pass from the transparency obligation.
It is a bedrock principle of our federal system that all states should be treated equally, particularly when it comes to how elections are run. States would not have joined the union if some states had to comply with federal laws and others could ignore them.
So why these six states? They offered same-day voter registration or did not even have voter registration, 31 years ago.
Today, states that have same-day registration don’t enjoy the transparency exemption. Worse, everything about election administration has changed since 1993. Exempting states from federal transparency obligations based on 1993 circumstances no longer is congruent and proportional with current circumstances in 2024.
I used the words congruent and proportional for a reason. That’s what the Supreme Court has held congressional actions must be when important federalist principles are violated. States cannot be treated unequally unless there is a very good reason, and reasons from 1993 shouldn’t count in 2024.
Our lawsuits in both Minnesota and Wisconsin seek records under the public information provisions of the National Voter Registration Act. Those states will claim they don’t have to comply with federal law to release public records. That’s the problem, not the defense.
The Supreme Court in Shelby County v. Holder held that sometimes laws that upset the equal treatment of states go too far. In Shelby, the Court ruled that the federal system presumes that states enjoy equal sovereignty. If Congress treats one state different than others, especially in election law obligations, the differential treatment must “make sense in light of current conditions.”
Offering same-day voter registration in 1993 should not have been a reason to be exempt from transparency in the voter list maintenance process. States with same-day voter registration still routinely grant and remove voting rights through the voter registration and voter list maintenance process. Congress’s intent to make this process transparent applied equally to the states, including those with same-day registration.
The world has changed since 1993. In 2024, 20 states and the District of Columbia offer same-day voter registration. Yet only 13 of those states and D.C. are subject to the election transparency requirements of the National Voter Registration Act.
At the heart of the matter is that states should be treated equally under the law and these arbitrary exemptions violate federal law.
America could use a little transparency and trust right now in election administration.
