On Wednesday, the Rhode Island Board of Elections (BOE) will discuss a complaint that former Republican gubernatorial candidate Ken Block filed with the U.S. Department of Justice. At issue is the State of Rhode Island’s compliance with the federal Help America Vote Act of 2002 (HAVA), which Block alleges the state’s voter registration regulations to violate.
Under the plain language of HAVA, states cannot register voters who do not provide either their driver’s license numbers or the last four digits of their Social Security Numbers (SSNs). The federal law does contain a “special rule” for eligible voters who cannot provide either form of ID, but the language specifies that this option is only available for voters who have “not been issued” them. In a series of regulation changes in the years since, the RI BOE may have effectively transformed this exception into an optional “requirement.”
By the time Rhode Island published its most recent voter registration form, dated December 2012, providing ID to register to vote was no longer required for those handing in the form in person. And even for applicants mailing their forms in or sending them through third parties, the level of identification had become as lax as “unverified” utility bills, bank statements, or a handful of other documents that might have a name and address for the applicant.
Regulation Changes Loosening HAVA
Even with the first set of regulations that the BOE implemented following HAVA, compliance with federal laws was questionable. The requirement that anybody who “had been issued” a license or SSN must provide the number had changed to those who “have” one. Voters who could provide no identification upon registering or before election day were permitted to present some other form of photo identification or a broad list of documents with just a name, even including paychecks.
However, under the 2003 regulations, the process to get to that point was elaborate, and potential fraudsters may have found it intimidating and risky. First, the applicant would have to check a box affirming that he or she did “NOT have a RI driver’s license or social security no.” Next, local Boards of Canvassers would attempt to verify the person’s identity through the Department of Motor Vehicles. Finally, poll workers would not allow the person to vote without some form of ID (or accept mail ballots without copies of the ID).
Two rapid-fire changes to the regulations before the 2008 election removed this sense of risk. In February of that year, the BOE changed the regulations to eliminate the responsibility of a Board of Canvassers investigation. A “first-time voter registration applicant” would have to provide either a driver’s license number or SSN, which the canvassers would verify, or an actual ID, which the canvassers would not verify. Those forms of identification included some with photos and some without.
In July, the BOE took the step of removing this requirement entirely for people registering to vote in person. The instructions for “Box 3” of the voter registration form made this clear and removed all doubt that the a license or SSN was effectively optional even for those mailing the registration or sending it in with a third party. No longer did the applicant even have to state that he or she didn’t “have” the required IDs. Instead: “If you do not provide the above information or it cannot be verified, you will be required to provide identification before voting to an election official.”
Continued Erosion, Even with Voter ID Law
Amid attempts to discuss this matter with multiple current and past election officials, The Current reviewed the BOE’s regulatory process and the specifics of voter registration with Planning and Program Development Specialist Miguel Nunez. In the course of that conversation, Nunez suggested that the voter ID legislation that became law in Rhode Island in 2012, strengthening in 2014, now makes the Ocean State’s identification requirements “more strict” than HAVA.
Rhode Islanders concerned about election integrity may find this characterization insufficient comfort for four reasons, the first of which is that voter ID only proves that the person voting is the person who registered, not that the registration is valid.
Second, the allowable IDs are much broader than a driver’s license or SSN. Government IDs — even including bus passes from the RI Public Transit Authority (RIPA), according to Nunez — are sufficient. Moreover, the free voter ID cards available through the Secretary of State’s office are arguably more loose than the unverified IDs that can be used to register. According to the instructions, credit cards, health club ID cards, utility bills, drug prescriptions, and more are allowable.
Third, Ken Block and others have raised questions about whether mail and emergency ballots create additional vulnerabilities for ineligible voting.
Fourth, legislation that Democrat Governor Gina Raimondo just signed into law includes mechanisms to automatically register people to vote not only at the DMV, but potentially through any government agency. The same legislation absolves from blame people who are incorrectly registered through an automatic registration process.
Whether the U.S. Department of Justice determines that Rhode Island’s voter registration laws are complaint with HAVA, the gradual transformation of laws through regulations bear close scrutiny going forward. Minor changes in language can have out-sized effects on what people believe the law to be and, therefore, how they behave when it comes to participating in the electoral system.