Over the last decade, red and blue states have quietly forged a novel bureaucracy to coordinate voter registration. The Electronic Registration Information Center is a nonprofit corporation composed of state election officials. Participating states share voter registration and motor vehicle records to keep voter registrations up to date as voters move or die—a challenge for any one state made manageable by data sharing. Now a rash of Republican departures has threatened to undo ERIC’s bipartisan progress.
The Republican exodus is fueled by disinformation smearing ERIC as a “Soros-funded organization.” It began on right-wing radio and was stoked by the Gateway Pundit. Louisiana quickly withdrew in response. In the past few months, six other states, including Florida and Ohio, have too.
Any congressional response to the problem of coordinating voter registration—now exacerbated by the withdrawals from ERIC—is limited by the constitutional allocation of election authority between the federal and state governments. Congress does not have the authority to simply federalize voter registration for all elections. Instead, those who care about the health of our democracy, particularly in today’s age of distrust, should push Congress to fortify ERIC’s national, but not federal, approach to integrating our balkanized voter registration framework.
To understand what’s at stake in the sudden battle over ERIC, it’s helpful to start with a few basics about voter registration. In all states but one, citizens must be registered in order to vote. This requirement may seem simple, but it exposes a fundamental tension between our decentralized approach to voter registration and our mobile electorate. On the one hand, each state has its own list of registered voters, often managed by local election officials. On the other, voters often move, breaking the fixed link between their registration and their residence. The result is that millions of voters are on too many lists, the wrong list, or no list at all.
In a forthcoming law review article, I offer the first comprehensive account of the rise of ERIC and the latest attacks against it. To improve election administration in the 1990s and early 2000s, Congress centralized voter registration lists at the state level and required officials within each state to make a “reasonable effort” to identify and cancel the registrations of voters who moved—what’s known in election administration as “list maintenance.” But Congress did not create a single federal voter registration list. Instead, an Obama presidential commission encouraged states to “share … voter lists so that states, on their own initiative, come as close as possible to creating an accurate database of all eligible voters.”
The Obama Commission endorsed two state-based efforts: Crosscheck and ERIC. Contrasting the two makes clear what would be lost if ERIC collapses.
Crosscheck compared state voter registration lists to identify potential duplicate registrations and double votes. That approach sounded sensible. But state voter registration lists generally lack sufficient information to uniquely identify voters or uniform standards to compare them. For example, because of privacy concerns, federal law prefers for states to collect a voter’s state driver’s license number, rather than the last four digits of their federal Social Security number. As a result, Crosscheck’s cross-state matches proved unreliable and instead seeded the false narrative of fraud, as co-authors and I have previously showed.
In contrast to Crosscheck, which is now defunct, ERIC is an institution worthy of our support. Unlike Crosscheck, ERIC can reliably compare state voter registration lists with one another and with other administrative data, such as the federal death list. ERIC is a clever solution to integrate our balkanized system, though the central reason it works has largely been missed in the public debate. In short, ERIC supplements voter registration records with confidential motor vehicle records, which, because of arcane privacy laws, typically contain both a driver’s license number and Social Security number. The additional data helps states uniquely identify voters, although it is not without error.
Since it began in 2013, ERIC has been thoroughly—and consciously—bipartisan.
To join, states must agree to what amounts to a political compromise: to both initiate the cancellation process for voters ERIC identifies as having moved and invite eligible-but-unregistered voters to register.
Now right-wing groups are plotting to weaken ERIC and revive Crosscheck’s faulty approach. J. Christian Adams has peddled the false claim that ERIC is a “smokescreen” for Democratic efforts to turn out the vote, which former President Donald Trump has parroted.
Against this backdrop, the exiting states have offered few substantive explanations for their sudden departure. Their ostensible criticism of ERIC’s required outreach to unregistered voters is at best ironic. Although ERIC’s efforts to increase voter registration are laudable, they are not particularly effective, and there’s no evidence they are partisan. A better understanding for the sudden about-face is cynical: Less accurate, siloed voter registration lists make it easier to promote the specter of fraud.
ERIC is now staring down a difficult political challenge. In my forthcoming article, I propose multiple ways Congress could fortify and expand “democracy’s bureaucracy.”
For example, take the federal framework for list maintenance. Federal law imposes no substantive standard for how election officials should determine which voters have potentially moved. Voters don’t typically tell election officials when they move. So, election officials take a variety of approaches—for example, some check if election mail is returned as undeliverable, some check whether voters filed a change-of-address request with the U.S. Postal Service, and others rely on ERIC. Instead of establishing a substantive standard for reliable evidence that a voter has moved, federal law relies on a series of procedural protections to guard voters against immediate disenfranchisement—election officials must first send a notice to the voter and, if the voter doesn’t respond, wait two federal general elections before canceling their registration. Since almost no voters respond to the notice, voter registration lists grow bloated during the roughly four-year waiting period.
Broadly speaking, a revised federal approach could trade some procedural protections for more substantive standards. For example, Congress could shorten the waiting period if election officials obtain reliable evidence that a voter actually moved, or eliminate the waiting period entirely if election officials coordinate to update the voter’s registration. A state might then want to join (or stay in) ERIC, perhaps with some conditions, in order to more quickly (but still reliably) cancel outdated registrations.
Or consider the growing tension between federal election law and federal privacy law. Federal election law requires that states “make available for public inspection” list maintenance activities, in part to promote trust. But federal privacy law protects “personal information … obtained … in connection with a motor vehicle record.” As a result, states deny public information requests for reports ERIC generated based on motor vehicle records. The result is an unfortunate and unnecessary tradeoff of more reliable list maintenance for less public oversight of the critical process—all of which has made ERIC vulnerable to opportunistic and misleading attacks that “states are using ERIC to hide what they are doing.”
To be clear, there is much to improve about ERIC beyond fortifying it against attack. For one, advocates would do well to resist a narrow understanding of list maintenance as disenfranchising—captured by the term “voter purging”—and consider how list maintenance could enfranchise mobile voters. Further, advocates should understand ERIC as serving many different functions, some of which of which overlap with existing federal obligations—dubbed “motor-voter”—for state motor vehicle departments to coordinate with state election officials. Finally, while many states have not joined ERIC, states in ERIC should make more use of the organization’s current capabilities; for example, member states should be required to regularly and reliably check for potential double voting.
Still, ERIC can’t continue to improve if it doesn’t survive—as a nationwide, and hopefully bipartisan, effort.
