Voting Legislation Impacting College Students: A System of Increased Integrity or Barriers?

Jeffrey C. Sun
University of North Dakota

By the time this column appears online, the 2012 elections will likely dominate our television advertisement space, nightly news coverage, and campus debates. Given the timing, I thought an election focus would be an appropriate topic for this issue.

College students are not apathetic when it comes to election participation: a recent report from the Center for Information & Research on Civic Learning and Engagement (“CIRCLE”) at Tufts University indicated that college students have been voting in general elections at steadily increasing rates since 2000 (CIRCLE, 2011). For instance, in 1996, approximately 70% of enrolled college students were registered voters, and, of those registered voters, slightly more than 70% voted in the general election. Let’s fast forward to 2008: in that year, similar to 1996, approximately 70% of enrolled college students had registered to vote by the 2008 election with 87% of the registered students voting in the 2008 election (CIRCLE, 2011).

Several events might have contributed to the increased participation of college students in elections. For example, in 1996 the Washington Higher Education Secretariat, an organizational body representing Chief Executive Officers of national higher education associations (including ACPA), launched the National Voter Registration Project. Since 1996, that project has led national campaigns to encourage student participation in elections (Washington Higher Education Secretariat, 2012). Not long after the launch of the National Voter Registration Project, the Higher Education Amendment of 1998, which reauthorized the Higher Education Act, required Title IV recipient institutions to make a good faith effort to distribute voter registration forms1 to each degree and certificate seeking student in attendance2. In addition, social media appeared to capture many college students’ attention about contemporary political issues and the opportunity for change through voting (Kushin & Yamamoto, 2010; Page, 2011). Further, nonprofit organizations such as Rock the Vote continued their work as developers of marketing campaigns that captured the youth’s attention and generated their interest in election activities (Rock the Vote, 2012).

Certainly, multiple groups’ actions likely paved the way for the increases in college student participation in elections for nearly the past 20 years. Indeed, many advocates of civic engagement and leadership would like to see even greater increases in college student participation rates3. Nonetheless, various pundits and politicians suggest that recent legislation in many states may create significant access barriers for college students to vote.

Potential Voting Barriers for College Students

After questions of reported voting irregularities in the 2000 election, Congress passed the Help America Vote Act of 2002 (“HAVA”). HAVA brought election administration reform by requiring more consistency among states, improving voting technology, and mandating more accurate voter registration data. Further, it mandated an identification requirement; yet, like many laws, the unintended and initially unstated consequences became more apparent to many observers with the passing of time. Following HAVA, states began considering, and in some cases actually passing, bills with strict requirements on what citizens must do in order to vote within the state. According to the Brennan Center for Justice at New York University (Weiser, & Norden, 2011, 2012 ), state legislators among 41 states have collectively introduced more than 180 bills placing further restrictions on voting since 2011. Below, I will discuss some of the legislation’s key components and explain how they present potentially significant burdens on college students.

Voter Registration

Eligibility. States generally indicate that voting eligibility and registration depends on the individual’s domicile. College students may designate their college residence as a place of domicile so long as the student does not maintain an active voter registration elsewhere.

In 1979, the U. S. Supreme Court affirmed that a residence hall address may qualify as an official place of domicile for voting purposes. In affirming a trial court’s decision, the Supreme Court ruled that a state cannot require an otherwise eligible voter to express intention to remain in the community after college graduation as a condition to using one’s college residence hall as a place of domicile (see Symm v. U.S., 1979). A state may, however, require that an individual declare that the college residence hall represent the student’s official domicile and forgo past addresses such as a parent’s home or other last reported address. As a very practical matter, this declaration change may impact a student’s scholarship if it is conditioned on the place of domicile or a county home as a qualifier for the scholarship award. In addition, some auto insurance plans may require stated domicile for coverage under a parent’s plan and may indicate that both parties must use the same address or fall within a certain location for insurance calculation purposes. College students may wish to consider these and related factors before deciding to declare place of domicile.

Registration documentation. Many states now require Proof of Citizenship, such as a birth certificate4, as well as photo identification to process voter registration. At present, the laws appear constitutional, but college students may not have the proper documentation readily accessible. According to a Brennan Center report (Gaskins, & Iyer, 2012), approximately 7% of survey respondents drawn from a random sample of 987 voting-age U.S. citizens reported that they did not have a readily accessible document demonstrating citizenship. That percentage increases when one examines data of individuals with lower income levels. In addition, 11% of respondents indicated that they did not have government-issued photo identification, which is a prerequisite to voter registration in some states. The Institute estimated that the figure equated to approximately more than 21 million people in the U.S. who fall into the category of not having a proper government-issued photo identification (Gaskins, & Iyer, 2012). Accordingly, these increased requirements may reduce the likelihood that individuals complete the process and file the registration paperwork—especially since several states require multiple weeks of registration processing and clearance before one is eligible to vote.

Registration Periods. Several states have closed the window for voter registration, including prohibiting registration on the day of an election. These limits require voters to plan significantly in-advance and ostensibly changes access to voting. Oddly enough, as technology has expedited the processing of voter registration, selected states have placed processing time as the principal justification for closing the voter registration period to an earlier date. For college students, the most significant registration barrier is preregistration limits. Some states such as North Carolina have considered ending preregistration of 17-year olds. At present, many of these states allow preregistration of 17-year olds, but that eligibility may change. The current preregistration policies permit 17-year olds to file for voter registration in their home state prior to leaving for college. If these policies are changed, a resident of North Carolina who attends school in Connecticut, may only register to vote within a prescribed number of days prior to turning 18-years old and the inter-state registration may present another obstacle for that college student in terms of obtaining and processing the voter registration card.

Third party registration campaigns. In several states, including Florida, Illinois, and Texas, state legislators passed laws placing obstacles on third party registration groups that organize voter registration drives within the state. In these states, if a student organization wanted to conduct a voter registration drive, the organization and at least one representative are typically required to register with the state. In some instances, the law mandates a listing of all individuals working in the voter registration drive and requires participants to attend a training session. Further, the laws indicate a prescribed number of days that the organization must submit collected registration cards. In at least two states, violators are subject to fines and civil actions.

These barriers are not necessarily constitutional. A case from the Eleventh Circuit of the U.S. Court of Appeals addressed such a challenge. In that case, a group affiliated with a Black fraternity participated in a voter registration drive and mailed in the registration cards in one large packet. The state rejected the cards because an official voting registrar did not collect the cards; yet, the state would have processed the cards had the group simply mailed each card separately. The federal appellate court ruled that Georgia’s rejection of the voter registration cards conflicted with provisions of the National Voting Rights Act, a federal law intended to assist citizens with the voting process (see Charles H. Wesley Education Foundation, Inc. v. Cox, 2005), thus striking the state law.

In light of these laws and the case presented above, student organizations should check their respective state laws before conducting a voter registration drive. Several states such as Michigan and Minnesota have pending bills or state constitutional referenda with similar requirements. Some states may have newly enacted laws, in which case organizations should check when the law becomes effective and follow the required steps. Students can often find the requirements outlined in each jurisdiction’s Secretary of State’s website.

Voting

Restrictions on early voting. Twelve states have entertained or passed laws restricting the timing or process required in order to participate in early voting and voting by absentee ballot. For instance, a Georgia law reduced the number of days for early voting from 45 days to less than 30 days. While college students are certainly not the only individuals impacted by the more confined time frame, this law may limit students who are voting via absentee ballot while attending college in another state or needing the extra time to accommodate academic needs. In Ohio, a federal court struck down a state law restricting a portion of the early voting period to qualified military personnel (Obama for America v. Husted, 2012). The court noted that statistical evidence demonstrated the closure of the early voting period would unduly harm everyone equal access to vote.

Voter identification. As noted earlier, voter identification presents a potential obstacle for college students. In this section, I explain some of the limits arising from voter identification requirements in greater detail.

Voter identification requirements are not by themselves unconstitutional. Among the challenges to these provisions, courts have considered the requirements’ application in relation to the 14th Amendment’s Equal Protection Clause and the adherence to the Help America Vote Act. In Crawford v. Marion County Election Board (2008), the U.S. Supreme Court ruled that a state’s interest in deterring and detecting voter fraud, participating in a nationwide effort to improve and modernize election procedures, and safeguarding voter confidence sufficiently outweighed the citizens’ challenges of the law’s reportedly unfair treatment. In Gonzalez v. Arizona (2012), the Ninth Circuit for the U.S. Court of Appeals handed down a decision indicating that voter identification requirements did not constitute a poll tax because citizens had to pay a fee to obtain proper identification. Similarly, when a group raised the issue of whether the voter identification requirement violated the Georgia constitution, the state’s highest court ruled that the policy does not violate that state’s constitution (Democratic Party of Georgia, Inc. v. Perdue, 2011). South Carolina even has a system to issue free identification cards so eligible individuals may vote, regardless if they can afford to purchase a standard identification card. Nonetheless, South Carolina and other states such as Wisconsin are also undergoing legal challenges to voter identification requirements and the arguments extend beyond questioning about poll taxes. These cases and others raise concern about the voter identification laws’ impact on certain marginalized groups. Recently, a federal court held that the Texas bill on voter registration violated the Voting Rights Act by having a retrogressive effect on the poor and racial minorities within Texas (Texas v. Holder, 2012). According to the court, the process to obtain an acceptable photo identification “imposes strict, unforgiving burdens on the poor, and racial minorities in Texas are disproportionately likely to live in poverty” (p. 33).

While not unconstitutional on its face, voter identification requirements present significant hurdles for many college students. For instance, does the college student have an active form of identification from an approved issuing agency? Does the identification contain a recognizable photo (e.g.., did the student modify hair color or other characteristics that could confuse a polling agent)? More important, does the identification state an address within the precinct area (i.e., the student’s residence hall address)?

A driver’s license is the typical form of identification, but not all college students maintain a driver’s license. A state legislator argued recently that the photo identification requirement does not present a barrier to college students because even the ACT and SAT administrations mandate photo identification cards be shown at test time (Wallsten, 2011). This state legislator’s argument is somewhat flawed for several reasons. First, he failed to recognize that many college students have never taken either the ACT or SAT. More importantly, the ACT and SAT accept school identification cards, whereas many state laws requiring photo identification to vote do not permit college identification cards as a permissible form of identifying oneself (see, e.g., South Carolina; also, Kansas, which permits college identification cards from recognized schools within the state).

Conclusion

For many reasons, we should engage college students in the election process. To begin, they have a stake in the elections as elected officials and ballot measures often impact such critical concerns such as campus safety, tuition and fees, diversity on campuses, and financial aid. In addition, by bringing awareness about the requirements and processes, our students learn first-hand the complexity of political systems couched on one end as efforts to create integrity in the election process and on the other end as barriers of access to many otherwise eligible voters. This column conveyed to readers the heightened registration and voting requirements to construct opportunities in which we actually have a voice by qualifying as voters in this general election. To do so, here are some quick steps that college staff and students should consider: 1) consult relevant state law voting requirements (especially since so many states have new ones)5, 2) proceed with steps to obtain proper documentation such as proof of citizenship and an acceptable voter identification card for registration and voting, 3) build-in enough lead time to register or cast absentee ballots, and 4) encourage family, friends, and other colleagues to vote. Finally, don’t forget Election Day is Tuesday, November 6, 2012.

Discussion Questions

• What does your state law require with respect to voter registration and voter identification requirements? What does your state law (and states from which many of your students originate) require for absentee ballot voting?
• How have you educated your students about the voting process to ensure they are aware of the timing required for registration? What steps might your institution take to assist students in obtaining or having the proper identification required to vote readily available?
• What policies and processes does your institution have that present barriers to participation much like the effect of some of the state election laws? What mechanisms do you have to consider the intended and unintended consequences of these policies and processes?

References

Center for Information & Research on Civic Learning and Engagement (CIRCLE) (2011). Understanding a diverse generation: Youth civic engagement in the United States. Medford, MA: Jonathan M. Tisch College of Citizenship and Public Service at Tufts University.

Charles H. Wesley Education Foundation, Inc. v. Cox, 408 F.3d 1349 (11th Cir. 2005).

Crawford v. Marion County Election Board, 553 U.S. 181 (2008).

Democratic Party of Georgia, Inc. v. Perdue, 707 S.E.2d 67 (Ga. 2011).

Gaskins, K., & Iyer, S. (2012). The challenge of obtaining voter identification. New York, NY: Brennan Center for Justice at NYU School of Law. Retrieved from http://brennan.3cdn.net/773c569439b50452e0_kzm6bo5l6.pdf

Gonzalez v. Arizona, 677 F.3d 383 (9th Cir. 2012).

Help America Vote Act of 2002, 42 U.S.C. 15301 et seq. (2012).

Hesseldahl, A., MacMillan, D., & Kharif, O. (2008, Nov. 5). The vote: A victory for social media, too. Business Week. Retrieved from
http://www.businessweek.com/technology/content/nov2008/tc2008115_988160.htm.

Kushin, M. J., & Yamamoto, M. (2010). Did social media really matter?: College students’ use of online media and political decision making in the 2008 election. Mass Communication & Society, 13(5), 608-630.

Lucier, K. (2008). Voices of Influence: College students and the 2008 U.S. presidential election. The Bulletin of the Association of College Unions International, 76(5). Retrieved from http://www.acui.org/publications/bulletin/article.aspx?issue=704&id=7728

National Voter Registration Act, 42 U.S.C. § 1973gg (2012).

Obama for America v. Husted, Civ. No. 2:12 CV 0636 (S.D. Ohio Aug. 31, 2012).

Page, S. (2011, Oct. 24). Obama moves to revive ties with younger voters; Outreach aims at campuses, social media. USA Today, A2.

Rock the Vote (2012). Electionland USA. Retrieved from www.rockthevote.com

Texas v. Holder, Civ. Action No. 12-cv-128 (D.D.C. Aug. 30, 2012).

U.S. v. State of Texas, 445 F Supp. 1245 (D. Tex. 1978), aff’d Symm v. U.S., 439 U.S. 1105 (1979).

Wallsten, P. (2011, Mar. 7). State Republicans seek more limits on voters. Washington Post, A1.

Washington Higher Education Secretariat (2012). Your vote, your voice: Voter registration. Retrieved from www.yourvoteyourvoice.org

Weiser, W. R., & Norden, L. (2011). Voting law changes in 2012. New York, NY: Brennan Center for Justice at NYU School of Law. Retrieved from http://brennan.3cdn.net/92635ddafbc09e8d88_i3m6bjdeh.pdf

Weiser, W. R., & Norden, L. (2012). 2012 voting law changes: Passed and pending legislation that has the potential to suppress the vote. New York, NY: Brennan Center for Justice at NYU School of Law. Retrieved from http://brennan.3cdn.net/9ed80429d87c144de6_97m6bna11.pdf.

Notes

1. This requirement did not apply to states that do not have a voter registration requirement. At present, only North Dakota does not have such a requirement.

2. In 2008, California legislators amended the Donahoe Higher Education Act to include a similar requirement

3. Not everyone supports college students voting. Not long ago, the New Hampshire Speaker of the House William O’Brien conveyed his objections to college students’ participation in elections. He thinks the idea of college students voting is “foolish” (Wallsten, 2011). At a public event, he argued that college students lack “life experience” so they are not sophisticated enough to understand the issues or candidates.

4. While the barrier to proof of citizenship is potentially great, Kansas adopted an arguably fair requirement. Its law does not go into effect until January 2013. That latter enactment date offers advance notice, so voters can preplan and gather proper documentation before the 2013 general election.

5. Be careful, some Web sites such as the Brennan Center have state-by-state descriptions tailored to the college student population, but many of these descriptions are outdated (see http://www.brennancenter.org/content/pages/svg_state_write_ups/). Consequently, I strongly recommend that you check the Secretary of State’s election website or contact the office for more recent updates.

About the Author

Jeffrey C. Sun is an associate professor of educational leadership/higher education and affiliate associate professor of law at the University of North Dakota. He teaches and writes about legal issues pertaining to higher education.

Please e-mail inquiries to Jeffrey C. Sun.

Disclaimer

The ideas expressed in this article are not necessarily those of the Developments editorial board or those of ACPA members or the ACPA Governing Board, Leadership, or International Office Staff.