Proponents of a restrictive approach to democracy have had enormous and unlikely success using the First Amendment to target campaign finance laws. Now, they may be set to wield it against a major voting reform.
Christy McCormick (pictured), a member of the White House voting commission and a key U.S. election official, said Thursday that Automatic Voter Registration (AVR) may be unconstitutional.
“I do think there is a fundamental question: Does Automatic Voter Registration violate the Constitution?” McCormick told conservative state lawmakers, according to a report. “Congress, or government, should not be making any law abridging the freedom of speech. The First Amendment includes the right not to speak as well as the right to speak.”
McCormick was appearing on an American Legislative Exchange Council (ALEC) panel on voting policy, an event whose very existence has alarmed voting advocates. Among the topics to be discussed, according to a description on ALEC’s website: “[C]oncerns with automatic voter registration.”
As well as serving on the controversial White House voting panel, McCormick, a Republican, is a member of the U.S. Election Assistance Commission, a federal agency that helps states administer elections. She has used her post there to help Kris Kobach, the leader of the White House commission, in his ongoing effort to make it easier to require proof of citizenship from people registering to vote.
AVR works by automatically registering people to vote when they come in contact with the state motor vehicles department or other government agencies, unless they choose to opt out. In essence, it switches the default option from unregistered to registered.
It’s not hard to see why supporters of restrictive voting policies would want to develop arguments against AVR. In under three years, it’s been adopted by 10 states plus the District of Columbia, making it the fastest-growing and most promising voting reform out there. And it has the potential to transform access to the ballot, especially for marginalized communities: Oregon was the only state to have it in effect for last year’s election, and saw the largest jump in turnout of any state.
But McCormick’s First Amendment argument appears novel. None of the ten AVR states have seen a constitutional challenge to their AVR systems, on First Amendment or other grounds.
Indeed, an exhaustive 2013 Heritage Foundation report on the dangers of AVR by Hans von Spakovsky — a leading conservative legal scholar who serves alongside McCormick on the White House voting commission and appeared with her at Thursday’s panel — never makes the case that AVR violates free speech rights, even though the report does raise “constitutional concerns” about a different voting reform, same-day registration. Instead, von Spakovsky argues that AVR could make it harder for states to maintain accurate vote rolls — there’s no evidence so far bearing out this concern — and that it raises privacy concerns.
And on its face, the free speech claim appears unconvincing. If AVR constitutes requiring people to register (it doesn’t), then by the same logic, states that don’t offer it are requiring that people don’t register — which would be far more obviously unconstitutional. And of course, being registered doesn’t mean you have to vote, which presumably is the “speech” being compelled.
Writing online, Rick Hasen, a leading election law scholar, called McCormick’s argument “frivolous,” adding, “wow, that’s weak.”
Still, when a conservative Yale Law professor first advanced the idea in the early 1970s that many campaign finance laws might violate the First Amendment, his argument, too, was seen as an extreme long shot. Four-plus decades later it’s been used to demolish the framework of campaign finance law that had existed for a century.