Twenty years ago, Congress passed a controversial law requiring states to allow people to register to vote when they applied for driver’s licenses or social services.
Now, that same law is bringing voter registration to the health insurance marketplaces, and again, it is expected to result in legal fights. It also could lead to more partisan debate over the Affordable Care Act as Republicans raise concerns about whether the voter registration effort will produce Democratic voters.
According to the 1993 National Voter Registration Act, motor vehicle departments and places that provide public assistance, like food stamps or Medicaid, or services for people with disabilities, must also offer voter registration. But states are divided over whether the law applies to the insurance marketplaces. Hawaii concluded that its exchange was not responsible for registering new voters, while several others, including Connecticut, Vermont and California, have designated theirs as mandated voter registration agencies. Colorado determined that the exchange is not a state agency but decided to put a voter registration link on its website anyway.
Even the states that have said they will offer registration vary widely on how -- whether simply to put a link on the website, include a form in the paper application, send forms to consumers who request them or offer a registration form to download and mail.
The federal government, which is running exchanges for 36 states, determined that voter registration must be offered to consumers because the Centers for Medicare & Medicaid Services is deciding on Medicaid eligibility. The federal government includes language on both the paper and the online application that says, “If you want to register to vote, you can complete a voter registration form at usa.gov.”
“This could end up being a huge legal battle in many states around the nation,” said Mindy Romero, who directs the California Civic Engagement Project at the University of California, Davis. “The fiercest of the debate will hinge on the impact on the electorate.”
Romero said each side will be looking at how their party will benefit from the millions of potential new voters, many expected to be low income. But she said that if history of the voter law is any indicator, just because someone registers doesn’t mean they will vote -- or that they will do so for any particular party. Research has shown that the national voter law had a significant impact on registration but not on turnout. And an increasing number of new voters are not identifying with one party, Romero said.
Michael Cannon, director of health policy studies at the Cato Institute, said he doesn’t have a problem with government agencies registering people to vote. But he said this effort is too selective, targeting those who are receiving free or subsidized health insurance and likely “favor the party that is in power.” Americans for Prosperity, a conservative group that opposes the health law, went further, saying in an interview that President Barack Obama is trying to gain political advantage by registering voters through the federal exchange.
Voting rights advocates, however, argue that this shouldn’t be a partisan issue. “Expanded registration is good for everybody,” said Eunice Rho, advocacy and policy counsel with the American Civil Liberties Union, which created a tool kit on implementation. “It’s good for our democracy.”
In 1993, the motor voter law was designed to make it easier for Americans to register. States quickly challenged the constitutionality of the act or simply refused to put it into practice. The Department of Justice responded by filing numerous lawsuits to enforce it, and the courts have consistently upheld the law.
Steven Schwinn, associate professor at John Marshall School of Law in Chicago, said offering registration through the insurance exchanges seems to fit the intent of the law. But he believes the federal government will have to decide whether to go after states that don’t agree – and it will be up to the courts to make the final interpretation.
California was the first to say it would give insurance customers the opportunity to register. Secretary of State Debra Bowen said in a letter that voter registration will help consumers “exercise the most fundamental right of citizenship.”
“It was a no-brainer,” said Nicole Winger, spokeswoman for Bowen. “There should be nothing political about encouraging people to participate in elections. Period.”
California, however, doesn’t have a strong track record with compliance with the National Voter Registration Act. Voter registration at public assistance agencies dropped significantly since the law was enacted, according to the Secretary of State’s office.
The state’s registration rate is 45th in the nation and there are still nearly 5.8 million Californians who are not registered, according to Kim Alexander, president of the California Voter Foundation.
Alexander and other advocates said despite its early promises, the state’s marketplace is not doing enough to fulfill its obligations under the federal voter law and a related state law passed last year to expand access to voter registration. The ACLU of California recently sent a letter to Covered California, saying the exchange must designate a coordinator, include a voter registration card in the paper applications and ensure that enrollment counselors receive special training.
Alexander said California and other states have a “window of opportunity” to reach millions of people who are signing up for health coverage.
“We recognize that this is not their No. 1 priority, but we also don’t want it to fall to the back burner,” she said. “They made a few gestures but they are very far from being in compliance.”
Covered California officials said they put a link on the website and information on the paper application but are working with the Secretary of State’s office as they continue to build up the site. But spokesman James Scullary said Covered California has to focus more energy on getting people insured. “What we have in place is not by any means the end game,” he said.
Advocates also hope that voter registration will take place on the ground at places like hospitals, nonprofit organizations and community clinics, where people are signing up for health insurance with the help of enrollment counselors.
Health clinics have long helped to register voters and will continue to do so under the Affordable Care Act, said Louise McCarthy, head of the Community Clinic Association of Los Angeles County. “It is absolutely core to the mission to empower communities,” she said.
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