William & Mary Law Review


On May 11, 2017, President Donald J. Trump signed an executive order establishing the Presidential Advisory Commission on Election Integrity (PACEI), with the mission to “study the registration and voting processes used in Federal elections.” Pursuant to this mission, Vice Chair of the Commission, Kansas Secretary of State Kris Kobach, sent out letters to state election officials soliciting all “publicly available voter roll data,” including all registrants’ full first and last names, middle names or initials, addresses, dates of birth, political party, last four digits of Social Security numbers if available, voter history from 2006 onward, information regarding any felony convictions, voter registration in another state, and military status. The requests were met with fierce public backlash from both citizens and state officials, with as many as fourteen states refusing to comply with the Commission’s request, ultimately forcing the Commission to dissolve due to sheer lack of state compliance.

Although many citizens may be glad that their information will not be disclosed to the Trump administration, the uproar over the PACEI request suggests that many citizens are unaware of the already public nature of their voter registration data. PACEI did not require states to submit any information beyond that which is already publicly available. Currently, “[a]ll 50 states and the District of Columbia provide access to voter information." Just as citizens and representatives strongly opposed disclosing voter information to the federal government, many voters express similar opposition to forfeiting their privacy to the public. Representatives and public officials are becoming increasingly aware of constituents’ privacy concerns and the negative effect that public record laws have on voter registration. Connecticut State Senator Paul Doyle said: “My constituent told me that they were going to take themselves off the voter list and de-register because of their information being available online.” The Supervisor of Elections for Marion County, Florida, Wesley Wilcox, noted a similar response from Florida constituents: “As a result of th[e] unintended impact of the ‘Public Records Law’, some voters are turned off to voting and have even requested to be removed from the voter registration rolls and surrender their right to vote in exchange for additional protection of their privacy.” State legislatures have responded to such concerns; in 2016, there were at least thirteen bills proposed in eight states that dealt with the distribution and availability of voter information.

There are legitimate and compelling reasons that eligible voters might be concerned about the public disclosure of their registration information. Consequently, publicizing voter registration presents the risk that, when forced to choose between protecting their privacy and registering to vote, some voters choose not to register; the unacceptable consequence being that eligible citizens are left unable to exercise their right to vote. This Note will argue that state disclosure of voter registration information as public record operates as a form of vote denial by conditioning voter registration on the public disclosure of a voter’s registration information. This disclosure threatens to decrease the number of eligible citizens who register to vote and consequently prevent eligible citizens from exercising their constitutional right to vote. This Note will then propose that Congress model a reform for voter registration laws after the Driver’s Privacy Protection Act.