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United States. Congress. Senate. Committee on Post.

Voter registration. Hearings, Ninety-third Congress, first session, on S. 352 and S. 472. Feb. 7, 8, and March 16, 1973 online

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Online LibraryUnited States. Congress. Senate. Committee on PostVoter registration. Hearings, Ninety-third Congress, first session, on S. 352 and S. 472. Feb. 7, 8, and March 16, 1973 → online text (page 21 of 28)
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of proof should be placed in those who would try to limit access for the ballnl .
To deny the vote willfully to any elegible individual is unconscionable.



210



Yet, In effect this is exactly what this country does. The burden Is placed
on the individual to prove himself the master of a series of randomly concocted
obstacles, the rationale for which has long since been forgotten and the justi-
fication for which is never reexamined. Through a series of incredably involved
legalistic technicalities - of ten, although not always, having been just forward
with the best of intentions - people are denied the right to participate in elec-
tions. For those unfamiliar with these awkward preambles to the vote (such as
newcomers to the electorate), for those with little heart for doing battle with
overworked local bureaucrats or for those simply unaware of precisely what is re-
quired of them (registration procedures are not something we emphasize in our
schools or through the media), the hurdle is the decisive one. The challenges
posed must be defined and met before the prospective voter can even get to the
object of his concerns, the ballot. To further complicate the problem, the re-
quirements have nothing in common with those demanded of him as a voter - a know-
ledge of candidates, party stands and policy alternatives. As one election succeeds
another, it has become clearer that the barriers that surround the vote are proving
insurmountable for increasingly millions of Americans.

It is a sad fact of life that voter turnout in this country in not impressive.
In presidential contests, the election that manifests the consistently highest
level of involvement, turnout has hovered around 60 per cent. In 1972, it dropped
to 55 per cent. Either figure is well below comparative levels of participation
in other democratic nations. Forty to fifty-five per cent of the adult American
population - scores of millions of people - do not participate in any form in our
nation's politics. The totals are staggering. A moment of consideration given to
the problem and its implications are frightening. For tens of millions of Ameri-
cans, rahter than participate in the system, the system acts upon them. They are
the passive recipient of the will of others. The long-run consequences of such an
electoral cancer are intolerable for any democracy that prides itself on its
viability.

The value and contribution of traditional registration practices need rcrvnlun-
tion. An argument can be made for minimal requirements. The procedures for rn^is-
tering prosepective voters thougli require a thorough over-hauling. The excesses and
discriminatory aspects must be eliminated. The present system is unjustif iabl n .
Wliy, for example, should one state make excessive demands on its citizens, another
very few and a third none at all? Why should one state allow a prospective voti-r
to register at the polls in election day, another seek him out at his place of res -
dance and enroll him, and a third provide only the most inopportune times at
restricted locations for him to prove his eligibility? Why should some counties
within the same state demand prior registration and others not? These are Ijasic
constitutional questions as to political representation that are just beginning to
come before the courts, a body increasingly sensitive to the injustices perpetrated
against some of the nation's citizens.

The government must rethink its role. In my opinion, the government has thi,'
moral and legal responsibility to insure that every potential voter is registciod.
Once registered, the burden is in the individual to inform himself and to votr Ills
conscience - and from 75 to 90 per cent of those registered do. The major barrier
to the vote has been and continues to be registration.

It is with this in mind that I welcome the pending legislation to ease the
burdens of registration by instituting a postcard system of enrollment. lincourng-
ingly, the bill also provides economic incentive grants to the hard-pressed st.nles



211



to help them in meeting their obligations and it establishes an office in the
Bureau of the Census to coordinate information and to assist in upgrading re-
gistration procedures nationwide. All would be most welcome.

In my opinion, the McGee Bill represents a giant step forward and one that
we can all view with pride. I believe it makes a major contribution to a re-
presentative democratic government, striking at the heart of one of the most in-
efficient, unjustifiable and archaic of past legacies. The Bill should rank among
the principal achievements of this Congress. It constitutes the most fitting
memoral to my way of thinking that this nation could offer in celebration of its
200th birthday.



VOTER REGISTRATION



FRIDAY, MARCH 16, 1973

U.S. Senate,
Committee on Post Office and Civil Service,

Washington, B.C.

The committee met, pursuant to notice, at 10 a.m. in room 6202,
Dirksen Office Buiklino-, Senator Gale W. McGee (chairman of the
committee ) presiding.
Present : Senator Fong.

Staff members present: David Minton, staff director and counsel;
Rod Crowlie, associate staff* director; Clyde DiiPont, minority counsel,
Richard G. Fuller. Dan Doherty. professional staff' members, and
Andrew E. INIanatos, legislative assistant.

OPENING STATEMENT BY CHAIRMAN McGEE

The Chairman. This is a continuation of a series of hearings that
began a year ago and have been continued in this session of Congress.

We are trying to assemble the best official opinions we can get by
bringing in people as witnesses who are willing to testify on any side
or all sides of the pending legislation before this committee — legisla-
tion that would involve the Bureau of Census in a procedure that
would register voters in Federal elections.

As a result of last year's hearing, as appears from the record, it was
the judgment of the committee that the Bureau of the Census was the
nearest ready to proceed, because of its other responsibilities and its
having access to all the formulae of all kinds that are required
and having both the equipment and personnel capable of approaching
the registration question in the way that S. 352 would outline it.

I am delighted to note this morning — although I may have made
statements to the contrary earlier this morning — that we do have a
witness here from the Attorney General's Office. His staff' advised me
that we were first turned down ; but, I think, it is important that we
have a look at this from all sides; and the testimony from the Justice
Department is very important.

Our first witness this morning is Deputy Assistant Attorney Gen-
eral Mary C. Lawton — -Ms. Lawton, it is nice to have you back with us
again.

Ms. Lawton. Thank you, Senator McGee. Since we were late getting
up this statement, perhaps I had better go right to it.

The Chairman. Yes.

Ms. Lawton. First, may I introduce Mr. Nathan Siegel of the
Office of Legal Counsel who has worked on these election problems
for some years.

(213)
91-577—73 15



214

STATEMENT OF MARY C. LAWTON, DEPUTY ASSISTANT ATTORNEY
GENERAL, OFFICE OF LEGAL COUNSEL, DEPARTMENT OF JUS-
TICE, ACCOMPANIED BY NATHAN SIEGEL

Ms. Lawton. jNIr. Cliainnan and Senator Fong : We appreciate the
opportunity to appear before this committee to comment on S. 352,,
a bill to establish a mandatory voter reg-isti-ation program for Federal
elections and primaries and to grant funds to States that agree to
adopt a similar registration system for State elections.

The percentage of eligible voters voting in the last Presidential
election illustrates the problem to which this bill was addressed. Too
few of our people participate in the democratic process. Indeed we
liig far behind many other democratic nations of the woi-ld.

As we view it, the basic questions before this committee are w^hy
do so few people vote and what can we do about it. The pi-oposed
Voters Eegistration Act assumes that the reason is that voting regis-
tration procedures present a barrier that prevents people from voting
and that greater ease of registration is the answer. We are not quite
so sure.

The Chairman. May I here suggest that of the different reasons
this was one of the factors considered in the committee report.

Ms. Lawton. Yes, I i-ecall that from the report of last year. As
this committee is well aware, a preliminary study conducted by the
Census Bureau in 1968 indicated that there are many reasons for
nonregistration — chief among which is a lack of intei-est. While there
are other reasons as well, as the Chairman well knows, including diffi-
culty of registration, some of this has been alleviatecl by the Voting
Rights Act Amendments of 1970 and by court decisions such as Dunn
V. Blumsfehi. 105 U.S. 330 (1972). We are not convinced that post card
registration of voters will result in a substantial increase of either
registrations or, more importantly, voter participation.

In our view, S. 352, at least in its present form, poses substantial
legal difficulties. We fear also that it contains serious fi-aud poten-
tial. In addition, it would entail substantial expenditures of funds
without pei'haps achieving the aim of inci-eased voter participation.
These problems may not be insui-mountable but until we have a better
understanding of the reasons for nonparticipation and the methods
of achieving greater participation, they justify' a more cautious ap-
pi-oach. Foi- now, our time and financial resources might more pi'ofit-
abl V be spent in a study of the root causes of the problem.

The initial question in anv Federal legislation dealing with voter
rights is whether it is within the constitutional power of Congress.
This is a complex and delicat(> question.

On its face, S. 352 would mandate post card registration only for
"P^edei-aF' elections and pi-imaries, strongly encouraging but not re-
quiring it in State elections. On the sui-face, this api)ears to demon-
strate a clear Federal interest. On close examination, however, the
mattei" becomes moj-e complex.

In the case of Federal pi-imaries and elections, th(> bill would, in
effect, supersede State registi'ation requirements witli Fedei'al pro-
cedures. Indeed, it a))pears to impose registi-ation requirements on a
State which, like Xoith Dakota, presently has no registration
procedure.



215

"While the post rard rooi strati on is, we frntlier, expected to reflect
State law, there is no indication whether Federal or State anthoritics
wonld have the last word as to whether a i-egistrant does, in fact,
comi)ly v.'ith State law. For example, we assnme States wonld remain
free to restrict votino- in all but cei'tain limited circnmstances involv-
ino; Presidential elections to bona fide residents (Dunn v. Blumate'n},
supra, 405 U.S. at 342-843), yet the bill does not indicate what would
happen if a State wei-e to reject a T-eoistrant as not being a bona fide
resident. Could the individual appeal under Federal procedures? State
procedures I Xot at all (

If Fedei-al authorities are to determine the bona fides of residency,
we think there woidd be substantial constitutional problems. While
Oregon, v. MifeheJL 400 U.S. 112 (1970), upheld the authority of
Congress to supersede State residency requirements in Presidential
elections, nevertheless Justice Black in his opinion noted that the Con-
stitution "saves for the States the powei- to control State and local
elections which the Constitution origip.ally resei'ved to them and which
no subsequent amendment has taken f i-om them"\ Id. at 134-35. ]\fore-
over, it seems clear from recent opinions, jiarticularly Dunn v. Blum-
fiteln, supi'a, that the State still has the right to determine who is a
bona fide I'esident.

It is true that there is dicta in Simileij \. Holm. 285 U.S. 355 (1032),
which, read literally, seems to indicate unlimited congressional au-
thority with respect to election of Senators and Rei^resentatives. It
must be remembered, however, that the congressional authoi-ity over
election of Senators and Representatives as set forth in article I, sec-
tion 4, of the Constitution is broader tluin the authority concerning
Presiflential electors mentioned in article II, section 1, clause 2. As
Justice Harlen observed in his dissenting opinion in Oregon (400 U.S.
at 211 fn. 89), there is substantial authoi-ity to the effect that Presi-
dential electors are State rather than Federal officers. In re Green^
134 U.S. 377. 378 (1890) : Ray v. Blair. 343 U.S. 214, 224-225 (1952).

In addition to covering the election of Presidential electors, the bill
would also apply to primaries and elections of delegates to national
nominating conventions. These are essentially political party, not Fed-
eral matters. See Irish v. Democratic Farmer-Lahor Party. 399 F. 2d
119 (8th Cir. 1968), aft'g 287 F. Supp. 794 (D. Minn. 1968). Moreover,
it has been held that the action of individual State political parties
in selecting such delegates constitutes ''State action'' within the mean-
ing of the equal protection clause of the 14th amendment. Bode v. Na-
tional Democratic Party. 452 F. 2d 1302 (D.C. Cir. lTil),cert. denied
92Sup.(^t. 684 (1972).

In an area as complex and changing as the Federal regulation of
elections, we are not prepared to say that the Congress is i)owerless
to exercise some control. It is open to question, however, whether the
Congress can reach so far into the State mechanisms for policing voter
eligibility or can impose registration requirements where the State has
chosen not to. Great care must be exercised in determining the proper
role of both the Congi'ess and the States in this area of sliared con-
stitutional responsibility.

Anotlier nuijor area of concern in any legislation which attem]its to
reduce State conti-ol o\ev the registration of voters is the potential for
fraud wliich may result from such relaxation. Here again it is a oues-
tion of balancing delicate interests. Voter registration procedures



216

should not be so complex or onerous as to discourage participation in
the most fundamental right of a citizen. At the same' time, such pro-
cedures must not be so lax as to permit substantial fraud in elec-
tions. Fraud dilutes, if it does not destroy, the effect of the citizen's
participation.

As we understand it, many, if not most, registration procedures
now require, the citizen to appear in person to register so that some
inquiry into his right to do so may be conducted on the spot. Under
the bill, prospective voters would register by mail. If the inter-
lude between mail registration and election day were substantial,
there might be enougii time for State officials, with the necessary
manpower, to initiate "field investigations" to determine whether
the signatory of the form is entitled" to register. The bill, however,
leaves little time for such policing. It merely requires the forms to be
mailed out to addresses no earlier than 45 days nor later than 30
days prior to the close of registration. If the form is not returned
until the last available day— presumably the day registration closes —
with State officials have the time to initiate independent checks of all
forms received ? This may pose severe difficulties in highly populated
precincts.

The Chairman. If sent by mail, it might eliminate not only some
but the entire votes of certain precincts — and, of course, I say that only
as a joke. [Laughter.]

]\ls. Lawtox. The bill, it is true, provides that whenever a State of-
ficial has reason to believe that unqualified individuals are attempt-
ing to register, he "may" notify the administration and request its
assistance to prevent fraudulent "registration. But will the administra-
tion itself have time to assist? Enormous manpower resources would
be required, it seems to us, for the administration on its own to detect
large-scale fraud particularly where the forms themselves do not
reach the administration, and the State official, as is possible, may
be involved in the fraud.

As Senator Aiken observed in debate on a prior bill last year:

There can be coUnsion between election officials of a community and as many
fraudulent registrations as they get, if they are not complained of. they can
get away with it. * * * (Cong. Rec. S. 3681, daily edition, March 8, 1972.)

Senator Ervin expressed the same concern, citing graphic details
(id. at S. 3673) :

It may be said that there is no danger of election frauds. Yet, some years ago
they hail quite an investigation of an election in Kansas City. As a result of
that election, the district attorney wrote a book in which he recounted what
the investigation of that election disclosed. The investigaticm of that election
disclosed the information, according to this district attorney, that the names
of scores and scores of people had been placed upon the registration books
as having resided in vacant lots or in filling stations and that votes had been
cast in the names of those people.

*******

This bill contemplates that the State or local registrar will never see the
voter whom they undertake to register by postal card. As a matter of fact, this
bill contemplates that the election official will be denied access to all information
about the qualifications of a person, who is called an individual, except the infor-
mation which is set forth by that individual or by somebody for that individual
on a postal card.

In our view, a bill that incr-eases fraud potential wliile it attempts
to increase voter participation is self-defeating.



217

The Department of Justice lacks the expertise to assess the full cost
of the program outlined by S. 352. We note, however, that the cost
estimates for similar bills last year, as reflected in Senate report
92-426, were very substantial. The Census Bureau estimated costs to
be about $15 to $20 million per mailing for registration forms with
an added cost of $5 to $10 million for establishing the address system.
The cost pel- Presidential year was estimated at $120 million. The
majority of this committee set the figure at $26 million.

In a study done by the Comptroller General, however, the potential
startup costs of S. 2457 — a similar although somewhat broader pro-
posal — ^^were variably estimated between $191 million and $527 million,
depending on the volume of registration, with added annual ongoing
costs estimated between $52 million and $134 million. [Voter Regis-
tration, Hearings Before the Connnittee on Post Office and Civil
Service, U.S. Senate, p. 97 (1971).]

If we had any guarantee that the registration provisions would
produce 100-pei'cent participant by the American electorate, it might
well be worth that. But as the Census study, referred to above, points
out, registration pi-ocedures as they exist today are neither the major,
nor even a substantial reason for the nonparticipation that concerns
us all.

Until we understand better the reasons why our citizens neglect
their obligation to share in govei-nmental responsibility, is it wise to
expend such great sums on registration? Would it not be wiser to
spend more time and less public money in studying the root causes of
the pi'oblem '^.

Even if tlie constitutional and fiscal pi-oblems can be resolved and
the fraud potential eliminated, the bill in its present form raises a
number of questions that remain unanswered. To be sure, many of
these are technical problems, but some of them are substantial. '

1. Registration forms would have to be sent to the occupants
of all IT.S. households— at least in the States and the District of
Columbia. According to the Bureau of the Census, there are about
64 million households in the Ignited States. There may be several
eligible occupants in each household. How will the administration
know what number of foi-ms to send to each address?

2. The bill provides that registration forms shall include such mat-
ters as State law requires and the administration determines appro-
priate to ascertain the individual's qualifications to register. Does this
provision mean that the administration may veto the designation of
material the State officials believe to be required ? What if there is
disagreement? Will it not be necessary to have different forms for
each State and for Presidential versus congi-essional elections ?

3. If a State refuses to participate on the State level and declines
to process the forms for Federal elections, what mechanism is there
to require compliance?

4. The question as to who is a "resident of a State" entitled to vote
is often difficult to decide, depending on State laws and decisions of
State courts. If the applicant states that he is a duly qualified resident,
does the State or local official have to be bound by the registrant's own
classification of himself? Who determines the qualifications of the
nonresident who votes in his former State in a Presidential election?

5. Who processes the forms for a State that has no registration
procedure ?



218

6. Do the penal provisions of the bill in section 108 preclude resort
to State civil or criminal remedies ?

7. What is the relationship of the penal provisions in this bill to the
existing Federal election laws carrying quite different penalties, such
as 18 U.S.C. 245, 594, 597, etc. «

8. Will the exclusion of the election of delegates in Guam and the
Virgin Islands and the election of a resident Commissioner in Puerto
liico raise equal protection problems ?

9. Does the "processing" of registration forms in section 409(a) of
the bill include independent investigation of the qualitications of a
prospective registrant or is it limited to the handling of the registra-
tion form itself?

10. Possession of a form under section 405(c) would be prima facie
evidence that the individual is qualified. Would the State or local of-
ficial be obliged to permit the holder of the form to vote even if he
knows, of his own knowledge, that he lacks the necessary qualihca-
tions? When Federal and State officials disagree as to qualifications,
what mechanism will provide for a prompt and hnal determination 'i

We raise these questions, not in criticism of this particular bill but
as an illustration of the complexity of regulating an area where there
is such diversity, and, we might add, justifiable diversity. Determina-
tion of voter eligibility is very different in a rural State and a highly
populous State. Eegistration procedures, of necessity, differ in a com-
pact, urban area like Rhode Island, and a sparsely populated land
mass like Alaska. Do we really know enough about the problems, at
this stage, to propose a universal solution like S. 352?

It seems to us that a wiser course would be that proposed by a bill
such as H.R. 12016 of the 92d Congres. That bill recognized that there
is an appropriate inquiry to make before legislating permanent Fed-
eral law on voter registration. It proposed that a study be made by the
Bureau of the Census of the election process, and that a report be made
with reconnnendations for improvements in procedures for Federal
elections. It is possible that the information which would ultimately be
furnished under a bill such as that may constitute a more adequate
basis for evaluating legislation such as S. 352.

In summary, we believe S. 352 raises constitutional issues that are
as yet undetermined, as well as a number of practical and legal pj-ob-
lems which are virtually certain to produce extensive litigation. ^lore-
over, it is our view that the danger of election fraud may be substan-
tially increased. As an alternative, we suggest that an extensive study
of the cause and cure of voter nonparticipation might be the more
appropriate step at this time.

The Chairman. Thank you very much. I have a question tluit I
would like to raise: Has the Department of Justice, as a department,
made a study of this problem and, if so, what is its most recent study
of this question?

]\Is. Lawton. On a nationwide basis. I don't think we have ever
made such a study. On particular problems, the Department has made
studies, I suppose, beginning with the year 1960 and coming right
along; but the Department of Justice has never made a general study
of it that I know of.

The Chairman. For a Voting Rights Act?

Ms. Lawton. Yes; for the Voting Rights Act of 1968 and the 1970
amendments to it. But those were addressed to specific problems in the



219

equal protection areas. We never studied it as a general problem that
1 know of, Senator.

The Chairman-. As I recall it, you mentioned also last year what
jour studies were, and I am sure you mentioned it every time that it


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Online LibraryUnited States. Congress. Senate. Committee on PostVoter registration. Hearings, Ninety-third Congress, first session, on S. 352 and S. 472. Feb. 7, 8, and March 16, 1973 → online text (page 21 of 28)