The Obama administration is committed to the expansion of voting rights and opposes state efforts to make voting more difficult.   But, at the same time, the administration is implementing its signature domestic achievement – the Affordable Care Act (ACA) – in ways that ignore the National Voter Registration Act (NVRA) and actually curtail voter registration. With the next ACA enrollment period just days away, the administration should immediately review its position. 

The NVRA, also known as the “motor voter law”, was enacted by Congress in 1993.  It requires state agencies that provide public assistance to assist their patrons to register to vote. Under the Act, state agencies must not only provide voter registration forms to their patrons, they must also assist those patrons fill out the forms and transmit completed forms to the appropriate state election officials. 

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The Obama administration didn't include voter registration services in the ACA federal exchanges even though it acknowledges that state-operated exchanges must comply with the NVRA.  This, of course, is inconsistent with the administration’s argument to the Supreme Court in King v. Burwell that the federal exchanges stand in the shoes of the state exchanges, an argument the Court essentially accepted.   

Furthermore, it ignores the fact that millions of Americans use the federal exchanges to apply for Medicaid and Children’s Health Insurance Programs (CHIP), which are state programs.  Indeed, the ACA requires all exchanges, including the federal exchanges, to provide a “single streamlined” application that includes enrollment in both Medicaid and CHIP.

Over the past two years, some 18 million Americans have applied for health insurance through the federal exchanges.  Consistent with the NVRA, they should have received an opportunity to register to vote and assistance in filling out voter registration forms similar to the assistance that exchange employees and contractors provide in filling out ACA health forms.  Instead, they have received no such assistance and nothing more than one easily overlooked line in the healthcare.gov application that mentions voter registration and a link to a hard to understand 25-page voter registration form.   An important opportunity to register new voters has been lost.

But the administration’s inaction does far more damage than that; it actually curtails voter registration. Prior to the ACA, people who applied for Medicaid in state offices and received the voter registration assistance mandated by the NVRA. Now many states have reduced or eliminated Medicaid application processes that are separate from the exchange process. Thus, Medicaid applicants using federal exchanges no longer receive the assistance they received in the past.

Mississippi offers a concrete example of the consequences resulting from the failure of federal exchanges to comply with the NVRA.
Mississippi still administers Medicaid applications directly, in addition to using the federal exchange. Nonetheless, the number of covered transactions through the state Medicaid agency in Mississippi has greatly declined as more and more Medicaid transactions are conducted using the federal exchange.

Before November 2013 (and prior to the federal exchange), the number of voter registrations applications submitted from Medicaid transactions in Mississippi averaged around 900 per month. During the same time period in 2014, however, the average number of voter registrations per month was only around 150. The impact would be even greater in states, such as Tennessee, that use only federal exchanges for Medicaid enrollment and states that have more applicants.

The administration’s refusal to require federal exchanges to comply with the NVRA is inconsistent with the law and its own commitment to voting rights. The administration should reverse course in time for the next ACA enrollment period beginning November 1. It may be too late to change the health.gov application form, but it is not too late to enable federal exchange employees and contractors to provide assistance to applicants who want to register to vote.

Onek, a principal at The Raben Group, served as senior counsel to House Speaker Nancy Pelosi and deputy White House counsel to President Carter.