Two of the fiercest political disputes between Washington and the states could soon come together in legal fights that involve tying the new federal health care overhaul to voter registration.
Every state is preparing to open a health insurance exchange by Oct. 1. Whether these new agencies will offer voter registration as well as health care information is emerging as a potential fault line that could further divide states from one another and from Washington.
The Obama administration and voting rights advocates say there's no question the agencies must offer voter registration under federal law. But Republicans in Congress and in some states are pushing back, and even some election law experts aren't so sure the question has an easy answer.
So far, just three states have officially said they'll link the exchanges and voter registration. But whether the rest will – or will be required to under federal law – is an open question that will likely lead to court battles and at least a temporary patchwork approach nationwide.
“I don't expect it to go evenly and don't expect it to go well, initially,” said R. Doug Lewis, head of the National Association of Election Officials. “There's not universal agreement about what can be done here, as you can imagine.”
The issue hinges on the interpretation of the 1993 National Voter Registration Act, commonly known as the “Motor Voter Act,” and whether it applies to the new exchanges. The measure requires states to offer voter registration at government offices, most commonly departments of motor vehicles. With the exchanges, which are in some ways a new kind of government office, some are questioning whether the law applies to them.
At stake is a new opportunity for millions of Americans to register to vote. Just 65 percent of eligible Americans over 18 are registered to vote now.
While most people have gone to a motor vehicle agency to get a driver's license, it is not required, and fewer young people have been applying for the driving privilege each year.
As many as 24 million Americans are expected to get insurance through the exchanges, meaning the agencies could be a potent new tool in voter registration.
Opportunity or Political Ploy
“If people can see past the word Obamacare I don't see why they wouldn't be capitalizing on the opportunity,” said law professor Justin Levitt of Loyola in Los Angeles. “As long as the Affordable Care Act is here and the exchanges are operative…there's a very strong case that they can actually help the state conduct voter registration.”
So far, California, New York and Vermont have said they believe the Motor Voter Act applies to their exchanges, and they'll offer voter registration through their health agencies. Others are considering it, but in many states, the issue has been under the radar amid the uproar over the broader health law rollout.
Where it has gotten attention, the issue has quickly become embroiled in the politics of both the health care law and voting rights issues.
Some say, for instance, that offering registration through exchanges would be a boon for Democrats in reaching minorities or poor and working-class voters. Others have said letting the exchanges register voters is a backdoor attempt to “resurrect” ACORN, the much-maligned and now-defunct community group that represented low- and moderate-income families. Conservative political commentator Rush Limbaugh has said tying voting and the health law shows “the purpose of Obamacare.”
“It's about building a permanent, undefeatable, always-funded Democrat majority,” he said.
Opponents of the Motor Voter Act expressed similar concerns when that measure was passed, although those fears were not borne out by registration trends in years since. One study said the largest groups of nonvoters were the “residentially mobile and young people,” and neither had identifiable partisan inclinations.
Aside from the politics, combining the complexity of the health care overhaul with elections policy has also worried some. An application for the federal exchanges drafted by the Obama administration that mentioned voter registration drew criticism from Republicans in Congress.
Republican Rep. Charles Boustany, chairman of the House Subcommittee on Oversight, warned that linking registration to the exchanges could leave people with the impression that the benefits are tied to voting in some way. Moreover, he said, the federal health law is about health care, and lawmakers never intended it to involve elections.
“The health care law spans 974 pages and regulates nearly one-fifth of our economy,” he wrote in a letter to the Department of Health and Human Services, “yet nowhere in the law is voter registration mentioned.”
In the states, the reaction has been more muted, partly because of the nature of Motor Voter Act enforcement over the years. Often, states don't openly oppose voter registration at public agencies, but rather they fail to comply with the law's requirements. Because of that, legal challenges are often initiated by voting rights advocates when a state fails to live up to the law's requirements. States are then called upon to defend their practices.
As the exchanges roll out, some question whether their design even fits the Motor Voter Act's definition of a public office, such as motor vehicle offices and other social services agencies. The main function will be to operate as a marketplace for private insurance comparisons and as a way to funnel subsidies to Americans who qualify for them.
But the exchanges will vary state by state, which complicates the issue. Some will also handle Medicaid applications, for example, while others won't. In some states, the exchange will be a nonprofit; in others it will be part of the state's health or human services agency. And in many Republican-controlled states, the federal government will operate the exchanges.
That leaves the eventual outcome of the legal disputes far from certain, and it could perhaps even differ across states. Whether an exchange has a physical office or is just an online marketplace could also be a factor. Or if the subsidies for insurance are seen by courts as a cash benefit, tax credit or something else entirely could affect the outcome as well.
“It's going to depend on how much it looks like traditional public assistance,” said Daniel Tokaji, a law professor at Ohio State University. “It's quite likely that it will play out in court, and quite frankly it should.”
The complexities are illustrated in Colorado, a Democratic-controlled state with a Republican secretary of state where activists have pushed the state to tie registration to the exchange.
While the state is still studying the legal details, Judd Choate, director of the state's elections, has issued an opinion saying that because the exchange will not register people for Medicaid and only “act as an information marketplace, and will not provide public benefits,” it's not covered under the federal law and therefore won't offer voter registration. The exchange will offer a link to voter registration information hosted elsewhere in state government.
The issue could be even more complex in states where the federal government is running the exchange, which is expected to be the case in 27 states, with the state and Washington sharing those duties in seven more. The White House has defended including voting on the draft application, and given the administration's position on the law, it's likely those exchanges would offer registration.
Whether Washington could – logistically or legally – force states to link federally run exchanges to state voter registration systems is worrisome enough to give elections administrators headaches already.
The difficulties and complexities make it likely courts will weigh in, as they have over the years when states failed to comply with the Motor Voter Act.
For Lisa Danetz at Demos, a left-leaning voting and equality advocacy organization, the specter of a drawn-out legal fight isn't a welcome one, especially as she sees the exchanges as an opportunity to improve voter outreach. But she said she has little doubt courts will see the exchanges as covered under the Motor Voter Act, much as other state offices have in the past.
“However it's organized, the actions of the exchanges are closely intertwined and are essentially the actions of the state,” said Danetz, who wrote a report on voter registration and exchanges.
“In the long run, they're going to be doing it,” she added. “It's what the law requires.”