October 29, 2015
Abby Goodnough, THE NEW YORK TIMES
WASHINGTON — When the Affordable Care Act’s new enrollment season begins next month, people seeking health insurance through the online federal exchange will also be offered something they may not expect: a chance to register to vote.
But voting rights groups say the offer — a link to a voter registration form that they can print and mail, deep inside the application for health coverage — does not go far enough. This week, the groups accused the Obama administration of violating federal law by not doing more to ensure opportunities for voter registration through the exchange, HealthCare.gov, which serves 38 states.
In a letter to President Obama, the groups said that in contrast, most of the 13 state-based insurance exchanges have worked to comply with the National Voter Registration Act. The act, also known as the “motor voter” law, requires states to offer voter registration to people applying for a driver’s license or public assistance.
“This is an important voting rights issue that can no longer be ignored,” wrote the groups, which include the League of Women Voters, Project Vote and Demos, a liberal think tank.
Some voting rights experts are not certain their claim would hold up in court. At issue is whether the federal exchange is subject to the voter registration law because it is providing a service on behalf of the states it operates in.
“It’s an interesting, creative argument,” said Richard L. Hasen, a law professor at the University of California, Irvine. “I just don’t know if the courts will buy it or not.”
The voting rights groups say that among other things, the federal exchange should be offering to help applicants complete a voter registration form. Although many applicants use the exchange independently, others turn to its call center or to “navigator” groups that have federal grants to help people apply for coverage.
“The navigators aren’t receiving any training or direction that they have to offer voter registration services,” said Jenn Rolnick Borchetta, senior counsel at Demos.
Navigators in several states that use the federal exchange said the voter registration link was easy to miss in the online application for health coverage and many navigators do not focus on it while they are helping clients.
“I’d suspect not many people have used it,” said Elizabeth Colvin, director of Insure Central Texas, a navigator group in Austin.
Michele Johnson, the executive director of the Tennessee Justice Center, a health care advocacy group in Nashville, said many navigators there “never saw” the question about voter registration while helping people sign up for health coverage. Others, she said, feared the question and link to a voter registration form were “too political to mention,” especially in Republican-controlled states like Tennessee where most elected officials oppose the Affordable Care Act.
“Anxiety on the part of navigators,” Ms. Borchetta said, “could be addressed by the federal government clearly saying what their responsibilities are under the law.”
A spokesman for the Centers for Medicare and Medicaid Services, which oversees the federal exchange, said the Obama administration “strongly supports the goals of the National Voter Registration Act and is committed to enforcing its requirements, as applicable.”
The spokesman, Aaron Albright, would not comment on whether the administration believed the law was applicable to the federal exchange.
Republicans have spoken out against allowing voter registration through the Affordable Care Act exchanges, calling it inappropriate. Representative Charles W. Boustany Jr. of Louisiana, who complained about it to the Department of Health and Human Services before the exchanges opened in 2013, said on Thursday, “HealthCare.gov was never intended to be a voter registration tool, just as state secretaries of state websites aren’t used for signing up for health care.”
Mr. Hasen said that given the many battles the Obama administration has fought with Republicans over the Affordable Care Act, it might prefer letting a court decide whether the federal exchange has to comply with the voter registration law.
“The federal exchange tends to serve more Republican states,” he said. “This would be a way of potentially registering more Democratic voters there. So it’s politically easier for an administration that’s always accused of trying to expand federal power to have a court make this decision.”
State-based exchanges, which are mostly in heavily Democratic states, have slowly improved their compliance with the voter registration law, said Sarah Brannon, the director of the government agency voter registration program at Project Vote. Some, including California and New York, now train navigators and call center operators in how to handle the voter registration option during the enrollment process. Others have yet to offer voter registration through their exchange but are working on it, Ms. Brannon said.
The voting rights groups said that Ohio, which uses the federal exchange, had had no increase in the number of voter registrations from public assistance clients since the state expanded Medicaid under the Affordable Care Act, despite a sharp increase in the number of people applying for Medicaid benefits. Many people now apply for Medicaid, as well as subsidized private insurance, through the exchanges.
Ms. Brannon said the groups had been asking the administration to bring the federal exchange into compliance with the voter registration law for two years. Now that the Supreme Court has ruled that people in states that use the federal exchange can continue receiving health insurance subsidies, she said, the administration has no excuse not to do so. As for whether the federal exchange is legally required to comply with the law, Ms. Brannon said, “It is a novel question, but we think the answer is very clear.”