By Jeffrey L Garceau

California’s New Motor Voter Act, passed into law last October, makes it the second state to implement an opt-out system for voter registration. In March 2015, Oregon became the first state to pass such a law. All other states require specific actions to be taken by a citizen to become registered to vote, hence the term ‘opt-in’. Opt-out procedures can manifest in various ways, but the idea is to tie registration to some other form of routine interaction with the state, with specific steps being required to indicate a desire to not be registered. In this case, when an individual applies in California for a driver’s license or other state identification, they will be assumed to also be applying to register to vote. The applicant would then have to specifically sign that they wish to not be registered.

Much experimentation and study has been dedicated to the effects of opt-out versus opt-in procedures in the realm of organ donation, and to a lesser degree, HIV testing and vaccinations. The results of these studies point to marked increases in participation when using the opt-out approach. Little is known about how this will affect voters, particularly in America, but if the goal is to increase voter participation, then this change is a relatively non-intrusive attempt to nudge the public along. More certain methods, like Australia’s voter mandate, are ideas unlikely to gain traction in a country that strongly values the freedom of choice to either vote or not vote.

There are two major concerns over provisions of the new law. First, there is the general feeling of manipulation; that the state is somehow tricking people into registering to vote without their knowledge. Second, there is a concern that non-citizens, or even illegal immigrants, will be automatically registered to vote, and be enabled to commit voter fraud.

…there is a concern that non-citizens, or even illegal immigrants, will be automatically registered to vote, and be enabled to commit voter fraud.

As for the issue of manipulation, there seems to be little reason for concern from a values aspect. Voting is seen as a positive social activity, even if people disagree on who is worthy of a vote. This positive social pressure is one of the reasons people lie about voting. Even if it is conceded that changing from an opt-in to an opt-out system is manipulative, the effects of this method being applied to something like organ donation is much more controversial than getting you registered to vote, assuming you are a citizen, which society overwhelmingly believes you ought to do anyway.

The law will implement this opt-in procedure by having the California Department of Motor vehicles send pertinent records to the California Secretary of State to verify eligibility and conduct registration. The Secretary of State then determines which applicants are eligible to vote, and registers those applicants only. The New Motor Voter Program does not replace any of the other methods for registration, including online registration.

The law leaves many of the details of this process to be determined by the departments themselves, in the form of new regulations, rather than spelling out the process required in the law itself. This does make the implementation process more opaque, but it is also much more efficient; the DMV and Secretary of State have the most intimate understanding of their own capacities and procedures. Additionally, if changes to the process need to be made, it is far easier to alter regulations than it is to pass a new law every time an update or revision is required.

The general issue of ‘implied consent’, as opt-out is commonly described, does have some valid information-provision concerns; lying or omitting information about registering voters without their consent certainly would be manipulative. Positively, the legislation has specific provisions mandating the California Secretary of State to conduct an outreach campaign, and that the campaign is conducted in multiple languages. Furthermore, the initial controversy over the law’s passing, which received attention in local and national media, should aid in the familiarity of the law.

The controversy regarding the registration of illegal immigrants is born of the fact that all applicants who fill out applications with the California DMV will also simultaneously apply to register to vote with the Secretary of State, and in California, illegal immigrants may apply for certain licenses and state identifications without fear of prosecution for their illegal status. On its face, these concerns seem to be overblown. The information requirements to register through the DMV are just as stringent as any other method used to apply for voter registration, and this law does nothing to lessen them. There is nothing keeping an illegal immigrant from applying to register to vote through their local post office, or on the Secretary of State’s website either; however, when these applications are received, they are verified and rejected by the Secretary of State, and no fraudulent registration occurs. Any applicants through the DMV have and will continue to go through the same process.

Exempting people from prosecution for a mistake in record keeping…has some merit, but the need for the second exemption…begs the question of appropriate responsibility.

One further point of contention over the threat of voter fraud is the law’s exemptions from prosecution. The New Motor Voter Program exempts anyone who 1) is fraudulently registered due to the error of the Secretary of State through this specific information-sharing program with the DMV, and also exempts 2) anyone who votes or attempts to vote under such fraudulent registration, unless that person is known to be willfully committing fraud.(2268-2269) Exempting people from prosecution for a mistake in record keeping by the Secretary of State has some merit, but the need for the second exemption for ignorantly committing voter fraud begs the question of appropriate responsibility. Anyone who is an illegal alien certainly knows they are not a citizen, and are not entitled to vote in elections. There doesn’t seem to be a justifiable rationale for enacting this exemption into law. The severity of this issue will likely depend upon how the courts interpret “unless that person willfully votes or attempts to vote knowing that he or she is not entitled to vote.” (2269) If they determine that anyone should be reasonably expected to know whether they are entitled to vote, this could be a non-issue. If they interpret these words to require the state to provide hard evidence, such as written or audio proof of intent, then this piece of the law could essentially make voter frauds immune to prosecution.

The actual impacts of the California New Motor Voter Act on voter registration, voter participation, and voter fraud can only be estimated at this point. Most detractors’ concerns should be allayed through reading and sincere analysis of the legislation, but there is reason to keep a close eye on the ramifications of its passing. There will almost certainly be some boost to voter registration, but the old saying that you can lead a horse to water, but you cannot make it drink, comes to mind. However, this is light-touch legislation compared to that used by other countries to boost voter participation, and is an interesting experiment for insights into how to increase voter participation in the nation as a whole.