Paul O’Hanlon calls it his “A-ha!” moment.
It came around 2002, just as he was starting work as a voting-rights lawyer and learning about the National Voter Registration Act, a law designed to expand access to the ballot box by requiring places like DMVs, welfare offices and disability agencies to double as voter-registration centers. The question the law requires these agencies to ask is simple: “If you are not registered to vote where you live now, would you like to register to vote here today?”
“As a person with a disability … I wasn’t seeing anybody asking the mandatory question,” recalls O’Hanlon, who works for the Disability Rights Network of Pennsylvania. “I sort of realized that’s never happened to me.”
At first, he thought, maybe it was just an anomaly — that these were isolated incidents, or he just didn’t remember being asked the voter-registration question.
But he started sifting through state data and found a pattern he describes today as “alarming”: Thousands of people who receive disability services may never be asked if they want to register to vote. And even among those the state can prove have been asked, only a small proportion appear to ever actually be registered by those agencies.
O’Hanlon isn’t the first to accuse the state of failing to ask people receiving public assistance if they want to register to vote — and the problem doesn’t just affect people with disabilities. The state appears to be unable to completely account for why people receiving different forms of public assistance — and who do not “decline” to be registered — never actually make it onto the rolls.
The state, meanwhile, largely maintains that any appearance that people aren’t being asked whether they want to register can be chalked up to a data-collection system that is still in the process of modernizing. The state also points to recent signs of progress: Voter registrations generated by state-run welfare offices (known interchangeably as county assistance offices) have increased more than four-fold in the past year alone.
Soon after Congress enacted the NVRA, in 1993, Pennsylvania resisted, securing a spot in the group of states initially targeted by the U.S. Department of Justice for refusing to adhere to the law.
And two years ago, the state found itself challenged again, this time by the Pittsburgh-based Black Political Empowerment Project, which was the lead plaintiff in a lawsuit that contended the state “failed to ensure that all clients […] are provided with a voter-preference form, a voter-registration application form, and assistance in completing a voter-registration application form.”
“Before we filed the lawsuit, for all intents and purposes, there was almost no voter registration going on at the county assistance offices” in Pennsylvania, explains Sarah Brannon, who oversees Washington, D.C.-based Project Vote’s efforts at getting states to comply with the NVRA.
That posed a particularly troubling civil-rights problem, since the people relying on public-assistance agencies to help them register to vote are more likely to be more transient and cut off from levers of power in the first place, says Ken Regal, executive director of Just Harvest, a local nonprofit that gets some state funding to help connect people to food assistance.
“The principle of the NVRA is that when people are interacting with the government, that’s the time to connect them to the relevance of voting,” Regal says.
The state appeared eager to settle the BPEP lawsuit: A month after it was filed, the state entered into a settlement agreement promising better compliance with the law.
The effects of that agreement were felt almost immediately.
In 2011, the year before the lawsuit was filed, 5,498 people were registered to vote through county assistance offices, where millions of people each year receive services ranging from supplemental nutrition aid to medical assistance. By 2013, the most recent year for which data was available, 47,028 people were registered to vote by those same county assistance offices, out of roughly 3.9 million registration offers made there.
“We have definitely seen a significant uptick,” Brannon says, noting that while disability-service agencies were not included in the settlement agreement, “we’ve seen that when one agency improves compliance, it can trickle down to others.”
So far, though, that doesn’t appear to be happening, at least for disability agencies. In fact, with 514 total registrations, 2013 represented the lowest rate of registrations by disability agencies since 2009.
And it’s not just that so few people seem to be getting registered. By O’Hanlon’s count, hundreds of thousands of people aren’t even being asked by disability agencies whether they want to register in the first place. While he estimates that roughly a million people benefited from state-funded disability services, state data show that in 2013, just 77,438 people were asked whether they wanted to be registered to vote.
That, O’Hanlon surmises, means “a person with a disability could wait 12 years to receive a single offer to register to vote.”
The fact that disability agencies were not included in the 2012 litigation might help explain why they fared worse than the county assistance offices in registering people to vote. But it’s likely not the only reason.
“My impression is that most disability services are too many layers down from the state’s accountability,” Regal adds. He notes that Just Harvest contracts with the state to help provide public assistance. But he couldn’t say for sure whether there was a provision in the contract that requires he participate in voter-registration efforts.
“When DPW or the Department of Health enters into a contract with a private company to outsource some of its functions, they’re supposed to delegate to the contractor its NVRA duties,” says Ben Geffen, a lawyer at the Public Interest Law Center in Philadelphia. “Our understanding is that compliance is spotty at best.”
The Department of Public Welfare, which runs county assistance offices, did not respond to numerous phone calls and emails seeking comment over a nearly week-long period.
Jonathan Marks, commissioner for the Bureau of Commissions, Elections and Legislation — and who helps oversee data collection on state compliance with the NVRA — says much of the concern over the state’s compliance with the NVRA can be attributed to data-collection systems that don’t tell the full story.
“I think we’ve demonstrated … that a lot of this is about tracking — and has been all along,” Marks says, noting that it’s possible voter registrations by public-assistance agencies have been historically undercounted.
For one, Marks explains, the state has long relied on generic voter-registration forms, which he says can be traced to specific public-assistance agencies only if they are funneled directly by those agencies to the county elections office.
And because an increasing number of people can apply for services like Medicaid and food stamps without ever showing up at a welfare office, many of those registration applications have gone out by mail, potentially bypassing the state’s ability to count them.
Since 2009, Marks says, the state has moved toward coded forms, which are more easily traced to specific agencies. But they’re not automatically distributed (the agencies have to request them), likely meaning the data is still distorted. “In some counties, old forms were still circulating out there,” he says.
And asked why the rates of disability service providers registering people to vote tend to hover in the triple digits, he said “there’s some overlap” between county assistance offices and disability providers. One person might get services from both and therefore have already been asked about voter registration, for instance, while others might be children or otherwise ineligible to vote.
Asked about those who fall through the cracks, Marks says, “I don’t think we’ve dismissed the possibility that people are being missed, but I don’t think that’s a significant proportion.”
O’Hanlon acknowledges Marks could be right, but he counters that if the state did offer more people voting-registration opportunities than the data show, “they don’t appear to be in a position to prove that.”
O’Hanlon’s concern over the data released this past June isn’t just over the comparatively weak registrations collected by disability agencies. He also points to statistics that show a large number of what he calls “lost voters”: people who were presumably offered an opportunity to register, since they did not decline to be registered, but somehow never made it onto the rolls.
Under the NVRA, if you do not decline to be registered to vote, you are still essentially treated as if you want to register.
For instance, of the 2.7 million people who either said “yes” or did not decline when asked by county assistance offices if they would like to register to vote, only 47,028 were actually registered to vote. “When I look at the lost voters, it makes me think maybe we’re only seeing a fraction of the improvement we should be seeing,” O’Hanlon says.
Among disability service providers, meanwhile, 8,039 did not decline to be registered to vote last year. But that generated just 514 registrations.
For his part, Marks explains that many of those lost voters did not explicitly say they wanted to register to vote. And many of them were likely never asked whether they wanted to vote by a human being, so it’s possible they just ignored the question and were not interested in registering, Marks adds.
But Richard Weishaupt, a lawyer at Community Legal Services in Philadelphia, says the state shouldn’t just assume people aren’t registering because they don’t want to.
“People go to those offices often under a great deal of stress,” he says, “and they’re not thinking primarily about their voter registration at the moment,” making it more important to affirmatively help people register.
Regal agrees — though he notes that hoping for good political will toward people on public assistance might be a lofty expectation. “If you could register online, like you can pay your taxes online and like you can do your banking […] then it would be easy and we wouldn’t have these problems,” he says.
“These are the people who went to court to protect voter ID. How eager is the state government to help people register to vote?”
This article appears in Sep 24-30, 2014.
