“As his second term neared its end, Thomas Jefferson wrote: ‘[T]hat government . . . [is] the strongest of which every man feels himself a part.'”
So began a 113-page opinion, handed down yesterday by a federal district court in Louisiana, in the case of United States of America v. State of Louisiana et al.[1] In this exhaustive opinion, the court basically held that mere lip service to the public assistance provisions of the National Voter Registration Act (NVRA) is not an option.
Congress passed the NVRA in 1993 with a specific purpose: “to establish procedures that will increase the number of eligible citizens who register to vote in elections. . . .”[2] To that end, Congress provided for three methods of voter registration: (1) by a mail-in federal voter registration form, (2) by motor vehicle offices, and (3) by public assistance agencies and other state-designated voter registration agencies.[3] Specifically, under Section 7 of the NVRA, public assistance agencies must provide their clients with a voter registration application unless they decline in writing.[4] This provision was created to ensure that our most vulnerable citizens, those with limited means, the disabled, and the elderly, would have to same ease in registering to vote as would are more affluent citizens who would have occasion to interact with motor vehicle offices.
In Louisiana, however, the state had apparently decided that our vulnerable citizens weren’t all that important, and gave all sorts of excuses for neglecting Section 7 of the NVRA. But, in a resounding victory for the right to franchise, a federal district court rejected the state’s arguments.
Among the reasons given for the state’s noncompliance with Section 7 of the NVRA was that the law didn’t apply to transactions that take place remotely (that is, public assistance transactions that took place outside of a brick and mortar office). However, citing the plain language of the Section 7(a)(6)—which, ‘in addition’ to other NVRA provisions, applies to ‘each’ public assistance transaction—the court found that voter registration services must be provided during both in-person and remote transactions.[5]
And, although it didn’t need to, the court also noted a trend towards increasing remote transactions, and found that the applicability of Section 7 of the NVRA to remote transactions “rather than Defendants’ version, aligns with the NVRA’s known purposes.”[6]
The state also tried another end run around NVRA Section 7 compliance by contracting out their obligations to third parties. and claiming that Section 7 of the NVRA did not apply to these third-party contractors. Rich, right? Thankfully, the court held that “[j]ust as this state cannot evade its obligations under federal law by means of delegation […] neither can [defendant] do so by private contract.”[7] The court found support for this position from many other jurisdictions as well, finding that “[o]ther courts have similarly ruled as to Medicaid service providers, local benefits offices, state university disability services offices, and other seemingly independent or ostensibly inapposite entities, and the private character of these entities did not absolve the state or the relevant agency of responsibility when public functions were performed.”[8]
And when that argument didn’t work, the state then tried to convince the court that its best efforts were good enough for Section 7 compliance. In no uncertain terms, the court held that “[h]ere, Section 7(a)(6) does not establish ‘reasonable effort’ or ‘substantial compliance’ as sufficient. Such language is not in the statute; nothing within the NVRA’s thirteen sections disturbs this pregnant silence.”[9] Thus the court made clear that voter registration mandated by Section 7 of the NVRA is no mere technicality, and that compliance must be meaningful. States who fail to comply do so at their peril.
One final note: as the court pointed out, states are increasingly utilizing remote transactions and third party contractors, but neither is an excuse to ignore the requirements of the NVRA. And this opinion is neither novel nor radical. Indeed, three different courts have reviewed remote transactions, and all three have found that Section 7 applies to all transactions, whether conducted in-person or outside the office.
The opinion issued yesterday is exhaustive and beautifully written, with eloquent attention paid to our most sacred of rights: the right to franchise. I can only hope that states take careful note of it and ensure Thomas Jefferson’s vision of a government in which everyone feels they have a part.
[1] No. 3:11-cv-00470 (M.D.La. July 26, 2016) (order and ruling on motions to dismiss and motions for summary judgment).
[2] 52 U.S.C. § 20501.
[3] See 52 U.S.C. § 20503.
[4] See 52 U.S.C. § 20506(a)(6).
[5] See, United States of America v. State of Louisiana et al., No. 3:11-cv-00470 (M.D.La. July 26, 2016) (order and ruling on motions to dismiss and motions for summary judgment).
[6] See id.
[7] See id.
[8] See id.
[9] See id.
