[EL] State A.G. and action on voting rights

Mon Feb 27 15:00:40 PST 2017

I agree that 23% - 35% is actually a very good rate, and as you note, many
states see much worse. But that's what seems like a good rate to those of us
who care about voter registration. But to the agencies tasked with actually
doing the work of the NVRA, that seems like a failure, not a success. A DMV
worker will point to a rate like 23% (or lower, typically), and say: "See? I
told you most people don't care. So why are we doing all this?"

Under an automatic / opt-out system, the numbers would probably flip. 

But to return to the original issue of the AG's role, clearly some AGs might
take on voter registration or NVRA compliance as a pet project (and would
likely do so through championing legislation, as Mr. Wice pointed out is the
case with AG Schneiderman), but it seems to me it would be extremely unusual
for the AG to sue one of the state's own agencies for failure to comply. 

Depends on the state of course, but I suspect that there would be a
nontrivial argument that such a suit is not within the AG's powers. The AG
is typically empowered to defend the state, and bring whatever actions are
authorized by law to be brought. Perhaps some states' laws would authorize
such an action, but that would seem unusual, since the DOJ and private
parties are authorized to sue by the NVRA (ADA, Title VII, etc). The agency
would likely protest that it's a conflict of interest as well, since the AG
is designated to represent the agency. Who would defend the suit? Either a
separate, screened off division of the AG's office, or you'd have to hire
outside counsel, making it a doubly-expensive proposition.  

So I guess in short, I don't think AGs, in their role as AGs, have much
leverage or other tools to use to bring about compliance. Their role clearly
requires them to defend the suit, however. 

Should they have a compliance role? That's an interesting question I really
haven't thought about. You perhaps could argue that it might actually save
taxpayers money if the state AG could compel compliance somehow, if it
avoided a more expensive lawsuit by the DOJ or private parties. 

Cheers,
Kevin

-----Original Message-----
From: Hess, Doug [mailto:HESSDOUG at Grinnell.EDU] 
Sent: Monday, February 27, 2017 1:33 PM
To: Kevin Benson <kbenson at whitehartlaw.com>;
law-election at department-lists.uci.edu
Subject: RE: [EL] State A.G. and action on voting rights

"I think the bigger problem is that DMVs, supportive service agencies, etc.,
don't see voter registration as part of their jobs. I suspect many of them
see it as an annoying extra thing they have to do that ultimately detracts
from (what they perceive as) their core mission, which is getting people
their drivers licenses or getting benefits."

I think that is partly the story on why noncompliance is so common. See
Hess, Hanmer, and Nickerson 2016
http://onlinelibrary.wiley.com/doi/10.1111/puar.12473/abstract

"They argue (and they are probably not wrong) that their average client
cares infinitely more about getting their license, or getting their car
registered, or getting some tangible benefit like SNAP. Those things have
concrete, urgent meaning to the person sitting at the window after waiting 3
hours. So the staff at those agencies are try to meet that demand. They do
not see voter registration as important or urgent, because they don't think
their clients do either."

This is often argued, but the data proves it wrong. When offered in a
meaningful way, a large percentage of those not registered DO register to
vote at these agencies. In MO for instance, after clients are asked if they
want to register, clients can reply "no" or "no, I am already registered" or
"yes" (meaning they want to register) or they cannot check anything (leave
the boxes blank). Of clients that are asked to register minus those who
indicate they are registered, the average percentage that check "yes" in a
county in a given month varies from around 23% to over 35%, depending on the
month. That's not bad. However, MO has had a tighter implementation and
monitoring plan even in the last decade than most states. (I.e., many states
see much worse performance, in part, due to performance.)

Douglas R Hess
Assistant Professor of Political Science Grinnell College
1210 Park Street, Carnegie Hall #309
Grinnell, IA 50112
phone: 641-269-4383

http://www.douglasrhess.com 

-----Original Message-----
From: Kevin Benson [mailto:kbenson at whitehartlaw.com]
Sent: Monday, February 27, 2017 11:59 AM
To: Hess, Doug <HESSDOUG at Grinnell.EDU>;
law-election at department-lists.uci.edu
Subject: Re: [EL] State A.G. and action on voting rights

It's an interesting question, and I think the result (just defending NVRA
lawsuits, rather than suing state agencies for compliance) derives from the
AG's typical role as simply providing legal advice and representation to
agencies. There's often scarcely enough money in the budget to actively sue
over "traditional" AG role items like consumer protection or environmental
issues. And in those cases you're usually suing a private party, not another
agency. For better or worse, taxpayers don't like watching their state sue
itself.  

I think AGs generally do see NVRA compliance as part of their jobs, just
like they advise clients on employment discrimination, civil rights or ADA
issues, etc. But AGs often don't have direct control over their clients or
any ability to make them comply if the client fails or refuses. The AG
likely doesn't even know about the issue until it's at the brink of
litigation. 

I think the bigger problem is that DMVs, supportive service agencies, etc.,
don't see voter registration as part of their jobs. I suspect many of them
see it as an annoying extra thing they have to do that ultimately detracts
from (what they perceive as) their core mission, which is getting people
their drivers licenses or getting benefits. They argue (and they are
probably not wrong) that their average client cares infinitely more about
getting their license, or getting their car registered, or getting some
tangible benefit like SNAP. Those things have concrete, urgent meaning to
the person sitting at the window after waiting 3 hours. So the staff at
those agencies are try to meet that demand. They do not see voter
registration as important or urgent, because they don't think their clients
do either. 

Kevin Benson, Esq.
White Hart Law
2310 S. Carson Street #6
Carson City, NV 89701
(775) 461-3780
kbenson at whitehartlaw.com

-----Original Message-----
From: law-election-bounces at department-lists.uci.edu
[mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of Hess,
Doug
Sent: Monday, February 27, 2017 8:49 AM
To: law-election at department-lists.uci.edu
Subject: [EL] State A.G. and action on voting rights

Reading the article in the link below (first paragraph also below) caused me
to wonder again about the role of state Attorneys General in election reform
and implementation. 

Do states have differences in the AG role that would explain why a state AG
would "unveil" an act? Or is this largely a difference in strategy,
careerism, etc. of an office holder?

On a related question, one of greater interest to me, I've always wondered
why AG offices have (largely) played a role in implementation of the NVRA by
defending their state against charges of noncompliance. Even when the issue
of noncompliance has not reached litigation, I don't sense the state AG
offices see state compliance with law as their job. Is that generally true
of their approach to state compliance with federal civil rights? Do state AG
offices have no tools for enforcement when it comes to state and local
governments? I.e., if a state agency or county is not complying with state
or federal disability laws, would the state AG ever sue or take other action
to enforce compliance?

https://urldefense.proofpoint.com/v2/url?u=http-3A__prospect.org_article_ag-
2Daction&d=DwICAg&c=HUrdOLg_tCr0UMeDjWLBOM9lLDRpsndbROGxEKQRFzk&r=xr_OjwGHtP
-zw6I-DJj_MQ4cusLbiVT1bScGa0c8ZJo&m=O4Rbp-tEZDrF5nO_hWv7f1bR63fKYwbVTCMVDTnd
mgM&s=KcZPnj9dMGGwvJfgXouM4l5pSdm6NmDiq8dI74Ir4Ek&e= 

"Last week on the steps of Federal Hall, the Wall Street building where
George Washington was inaugurated and the Bill of Rights was introduced, New
York Attorney General Eric Schneiderman unveiled the New York Votes Act, a
package of election reforms he hopes can transform his state into a national
leader on voting rights."

Douglas R Hess
Assistant Professor of Political Science Grinnell College
1210 Park Street, Carnegie Hall #309
Grinnell, IA 50112
phone: 641-269-4383

https://urldefense.proofpoint.com/v2/url?u=http-3A__www.douglasrhess.com&d=D
wICAg&c=HUrdOLg_tCr0UMeDjWLBOM9lLDRpsndbROGxEKQRFzk&r=xr_OjwGHtP-zw6I-DJj_MQ
4cusLbiVT1bScGa0c8ZJo&m=O4Rbp-tEZDrF5nO_hWv7f1bR63fKYwbVTCMVDTndmgM&s=ftUWIT
mJsaWJlkSBNWUtiKQWLYT-gFVGew2u1mLpXOo&e=  

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