Civil Division -- New Castle County
February 7, 1996
William G. Burke, Sr., Administrative Director
Department of Elections for New Castle County
820 N. French Street
Wilmington, Delaware 19801-3531
RE: VOTER REGISTRATION IN DELAWARE,
COMPLIANCE WITH NATIONAL VOTER REGISTRATION ACT,
42 U.S.C. § 1973gg et seq.
Dear Mr. Burke:
You have asked three questions concerning the validity of certain State procedures regarding voter registration in light of the federal National Voter Registration Act, 42 U.S.C. § 1973gg et seq. ("NVRA"). The questions are:
QUESTION (1): Can the State of Delaware continue to use the questions regarding residency as shown on the voter registration application (the "application") to reject an application?
(a) If not, to what degree and under what circumstances may the Department question the information provided by an applicant?
DISCUSSION: The two application questions specifically at issue are contained in the block titled: "If Applicant Has Lived Elsewhere." Those questions are:
1. Have you completely abandoned your former residence as your home? [Yes/No]
2. Do you regard the address on this application as your permanent home with no present intention of moving prior to the next general election? [Yes/No].
You note that the Department of Elections receives multiple applications on a daily basis with these two questions either unanswered, or with every possible combination of "Yes" and "No" indicated. Such applications have been summarily rejected. The issue is whether the failure to clearly answer these two application questions or to answer one or both in the negative remains a valid basis for rejecting voter applications after the enactment of the NVRA and conforming Delaware State laws, 70 Del. Laws ch. 188. On July 10, 1995, Senate Bill 244 was enacted, 70 Del. Laws ch. 188, amending portions of Title 15, Delaware Code, to conform State law to the NVRA.
State law, particularly 15 Del. C. § 2013, and the procedures outlined therein, must be followed when the Department receives applications from voter registration agencies authorized under 15 Del. C. Subch. VII and Subch. VIII. Specifically, 15 Del. C. § 2013(b) requires that the Department be "satisfied that the application is complete" before an applicant is registered as a voter.
Since the procedures for registration applicable to all registration places are designed to insure completeness of voter registration applications and enable the Department to make a competent decision on the applicants' qualifications as a Delaware voter, see, e.g., 15 Del C. §§ 2011, 2050(a)(5), 2064(e), failure to answer questions on the Delaware application may generally result in rejection for incompleteness. Pursuant to 15 Del. C. § 2013, however, notice must "immediately" be sent to the applicant informing the applicant of the rejection and the reasons.(1)
However, both questions need modification and neither question should be used in its present form to reject an application. A voter application may not be rejected as a result of either a negative answer or the failure to answer question two. The question asks: "Do you regard the address on this application as your permanent home with no present intention of moving prior to the next general election?" An applicant may be a bona fide resident of the State and therefore eligible to vote in a different election district following the "Change of address within the State" procedures in 15 Del. C. § 2047 at the time of the next election.
Fifteen Del. C. § 2047 permits a registered voter who has changed his address between elections to complete an eligibility affidavit and vote at the assigned polling place of his new residence. By the plain language of the statute, this change may be made "on the day of the election." 15 Del. C. § 2047 (emphasis added). Similarly, 15 Del. C. § 3165 expressly permits a registered voter who has changed his address to vote in primary elections at the new polling site, and 15 Del. C. § 4941 permits a change of residence at the polling place specifically during general elections "in accordance with the procedures contained in" 15 Del. C. § 2047. As a result, neither a failure to respond nor a negative response to this question can serve as the basis for rejecting a voter application.(2)
Likewise, question 1 needs to be amended to refer only to abandonment of a former residence outside of the State of Delaware. For the reasons stated above, rejection based on the present form of question 1 may lead to the wrongful disenfranchisement of an applicant who is a bona fide resident of the State of Delaware entitled to change his address pursuant to 15 Del. C. § 2047.
The address verification procedure instituted in 15 Del. C. § 2014(a)(3) is not triggered until the Department has actually accepted the application and registered the applicant as a voter. The "necessary verification and inquiry," and the determination that an applicant shall "be qualified to register to vote" are governed by 15 Del. C. § 2013(b). These are the statutory limits upon degree and circumstances under which the Department may question the residency information provided by the applicant.
QUESTION (2): Can the State of Delaware include items on its application that are not included on the National Mail Registration Form?
DISCUSSION: The NVRA mandates that "[t]he voter registration application . . . may require only the minimum amount of information necessary to . . . enable State election officials to assess the eligibility of the applicant and to administer registration and other parts of the election process." 42 U.S.C. § 1973gg-3(c)(2)(B)(ii). The question presented is whether this statutory "minimum" requirement is a limitation on the State's prerogative to determine voter eligibility through a determination of bona fide residency.
Addressing the right of the State to determine voter eligibility under the registration scheme mandated by the NVRA, the Federal District Court in Association of Community Organizations for Reform Now (ACORN) v. Edgar, 880 F. Supp. 1215 (N.D. Ill. 1995), aff'd 56 F.3d 791 (7th Cir. 1995), explicitly recognized that "[n]ot a word in the [NVRA] purports to impinge on the States' power to define what qualifications a voter must have, . . . ." Id. 880 F. Supp. at 1220. This reading of the NVRA was buttressed in the appellate decision, wherein the Seventh Circuit Court of Appeals stated: "The [NVRA, commonly referred to as the] 'motor voter' law does not purport to alter the qualifications fixed by the State of Illinois for voters in elections for the Illinois Assembly." Id. 56 F.3d at 794.
The NVRA is a proper exercise of Congress' "'general supervisory power over the whole subject'" of congressional elections. It requires states with voter registration procedures "to adapt their registration machinery (but not their definitions of voter qualifications) to the Act's requirements" that voters be permitted to register for congressional elections through satellite agencies and mail-in forms. Id. 880 F. Supp. at 1220-22, 56 F.3d at 793-96.
In accordance with the NVRA, State of Delaware Department of Elections officials can ask additional questions on the Delaware application and can reject an application for voter registration because the applicant does not meet the State's requirements for a registered voter on the basis of the applicant's response to those questions consistent with our answer to Question (1).(4) However, an application may not be rejected because the applicant used the National Mail Voter Registration Application or the Federal Postcard Application, 15 Del. C. § 1906(a), which do not include the State-specific residency questions.
QUESTION (3): What procedures should the Department follow when it determines that the address information provided by an applicant is incorrect both before a[n] individual is added to the voter registration rolls and after a person is added to the voter rolls?
DISCUSSION: Delaware's law conforms to the NVRA for the purposes of registering and removing registered voters from Delaware's voter rolls. Compare 70 Del. Laws ch. 188 with 42 U.S.C. §§ 1973gg-6(b) - 1973gg-6(f). Specifically, 15 Del. C. §§ 2013, 2014 and 2047 (as amended), detail the procedures the Department of Elections must follow after receipt of the applications, for "[n]otification of disposition of a person's voter registration application and procedure for handling returned mail," and "[c]hange of address within the State."
In accordance with the law, voter applicants, by whatever method of application, "are not registered to vote until the respective Department of Elections has verified and accepted the application." 15 Del. C. § 2064 (i). Consequently, any voter applications -- whether Delaware State Voter Application, National Mail Voter Registration, or Federal Postcard Voter Registration -- which are objectively deemed insufficient to "register" a voter in Delaware by the appropriate Department of Elections officials in accordance with 15 Del. C. § 2013, may properly be rejected consistent with this opinion.(5)
The State procedures under 15 Del. C. § 2013 following rejection of a Delaware form application are sufficient for rejection of National Voter Registration and Federal Postcard Registration forms when the applications are incomplete or the address is unverifiable, e.g. post office box only.
Once the application is accepted, the Department is obligated to follow the procedures set forth in 15 Del. C. § 2014. If the notice required by § 2014 is undeliverable, the statute sets forth the procedures to be followed which may result in the voter's status being changed to inactive.
If you have any questions, please contact our office.
Very truly yours,
Malcolm S. Cobin
Assistant State Solicitor
Jos. Scott Shannon
Deputy Attorney General
Michael J. Rich
cc: Elizabeth Bacon, Opinion Administrator
Thomas Cook, State Election Commissioner
Joyce Wright, Administrative Director,
Department of Elections for Kent County
Kenneth McDowell, Administrative Director,
Department of Elections for Sussex County
1. It is assumed that the Department will give the rejected applicant a reasonable period of time after the required notice is sent to correct any defects on the application. Although this is not statutorily required, it furthers the purpose of increased voter registration and permits the Section 2013 notice provision to serve a rational function.
The practice of giving applicants an opportunity to correct errors or omissions on their voter applications is apparently the practice used by the Department when processing other voter registration forms such as mail registration. It would be inequitable and possibly discriminatory if the same practice were not applied when the Department reviews and considers State applications submitted through Subchapter VII and Subchapter VIII agencies.
2. The Department may consider replacing question 2 with the question: "Are you now a permanent resident of the State of Delaware? Yes/No." In that case, a negative answer or a failure to answer could result in the rejection of the application.
3. I.e., "Each county Department of Elections following receipt of a voter registration application shall conduct the necessary verification and inquiry and then shall mail to each applicant to whom the department has determined to be qualified to register to vote a notice by nonforwardable first class mail." 15 Del. C. § 2014(a).
4. N.B.: "The [Federal Election] Commission's rulemaking authority does not . . . extend to . . . revising specific state voter eligibility requirements, or to interpreting how decisions on the national form affect state voter registration forms." 59 Fed. Reg. 32,311 (1995)("Supplementary Information" accompanying publication and promulgation of 11 C.F.R. Part 8, governing enactment of NVRA by states).
5. Significantly, in the "Supplemental Information" promulgated with the publication of 11 C.F.R. Part 8, the "[Federal Election] Commission expresse[d] no opinion on whether or not election officials may process applications when applicants fail to complete any of the required items, as this is beyond its authority under the [National Voter Registration] Act." 59 Fed. Reg. 32,312.
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