By Jane Miller

 

The United States Census Bureau reports that Americans aged 18-24 have the lowest voter registration rate of any age group.  Only 53.6% of U.S. citizens in that age group were registered to vote as of November 2012.  By contrast, more than 79% of citizens aged 65 and older were registered.  These disparate numbers raise questions about the health of our nation’s civic culture and the fairness of our elections, a concern so real it made it into an episode of The West Wing.

Between its implementation in 2010 and its repeal in 2013, a North Carolina election law attempted to mitigate the age-registration gap by allowing otherwise qualified 16 and 17-year olds to pre-register to vote.  Upon turning eighteen, individuals who had pre-registered would be automatically registered to vote following verification of their address.  According to Common Cause North Carolina, an estimated 160,000 of the state’s teenagers who pre-registered were able to vote in the 2012 election.  The North Carolina election law was unique in requiring county election officials to hold voter registration drives on high school campuses.

Twenty-two states currently have a form of voter pre-registration.  And despite the change in North Carolina, the trend in these types of laws has not been uniformly towards greater restriction; Colorado adopted pre-registration for 16 and 17-year olds in May 2013.  No states allow citizens younger than sixteen to pre-register.  Texas only allows pre-registration by citizens older than seventeen years and ten months.

While state voter registration practices have been the subject of major litigation, such as 2013’s Supreme Court ruling in Arizona v. Inter-Tribal Council, which struck down Arizona’s statute requiring proof-of-citizenship in order to register, it is far from obvious on what grounds supporters of the prior North Carolina law could seek a judicial remedy.  States have broad discretion over the details of election administration under Article 1 Section 4 of the United States Constitution.  That section states that “the times, places and manner of holding elections for Senators and Representatives, shall be prescribed in each state by the legislature thereof; but the Congress may at any time by law make or alter such regulations.”

Absent Congressional action, starting or stopping pre-registration appears to be exactly the type of practice that state legislatures are constitutionally permitted to control. Justifications for these decisions do not have to be grounded in decades of case law and judicial decisions.  In fact, the justifications can be practically non-existent.  For example, prior to signing the bill that ended pre-registration, North Carolina Governor Pat McCrory said “I don’t know enough, I’m sorry, I haven’t seen that part of the bill” when asked directly about that change.  Most More recently, McCrory refused to meet with Madison Kimrey, a 12-year old voting rights activist who wanted to discuss with him the elimination of pre-registration and other voting rights changes.

The political consequences of voter pre-registration seem clear: Democrats do better the more young people vote, while Republicans do worse.  For example, McCrory lost 18-29 year olds by a 56%-40% margin in the 2012 election for governor.  North Carolina adopted the practice when Democrats controlled the governorship and state legislature, while Republicans ended it when they did the same.  But beyond partisan politics, low youth voter registration and turnout highlights the concept of intergenerational equity, the question of fairness or justice between people of different generations.  Elected officials in North Carolina and elsewhere are making decisions that will affect children and un-registered or non-voting young adults more than they will affect many current adults.  That dynamic leads to a potentially un-democratic lack of accountability on the part of elected officials.

To increase intergenerational equity, several countries, including Austria, Argentina, and Brazil, have lowered their voting ages to 16.  In May 2013 Takoma Park, Maryland became the first jurisdiction in the United States to lower its voting age to 16 for municipal elections.  As a result, around 90 16 and 17-year olds registered to vote in this November’s election.

But as changes in North Carolina show, there is not a uniform trend towards lower voting ages or laws that increase youth participation in elections.  And state legislatures, not the courts, will likely continue to be the source of change in pre-registration voting laws.

 

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