Editor’s note: On October 2, 2018, the California Secretary of State reported a record 19 million registered voters are now on the rolls. According to Paul Mitchell, head of Political Data, Inc., much of the rise in registered voters is the new California Department of Motor Vehicle program that automatically signs up voters or updates their address, when they renew drivers’ licenses and identification cards. The DMV process has had some “bumps in the road.” By the end of 2018, the DMV reports 23,000 mistakes including duplicate registration and incorrect part affiliation and 1,500 improper registrations of parolees, noncitizens and minors!
A United States citizen’s entitlement to a jury of one’s peers is a touchstone of our justice system and rooted in the Constitution’s right to trial by an impartial jury. Recognizing this democratic principle and striving to achieve adequate representation and inclusiveness in our federal jury panels is critical not only to afford criminal defendants a fair trial, but also essential to foster an environment of active public engagement and to support public confidence in “the process.”
Many district courts in the Ninth Circuit can vastly benefit by supplementing current source lists for their master jury wheels with driver’s license rolls. Currently, most impanelment lists in this circuit are compromised only of voter registration lists. The Ninth Circuit Jury Trial Improvement Committee has recommended the use of motor-voter pools in its Model Plan “in order to increase inclusiveness and to provide better representation of the adult citizen population who are qualified to serve as jurors.” Ninth Circuit Jury Trial Improvement Committee, First Report on Goals and Recommendations (“First Report”), May 2004, p. 4. Adopting the recommended practice of using motor-voter pools to populate jury panels would aid in efficiently reaching the maximum number of qualified citizens to serve as jurors, and would assist in diversifying jury panels to reflect the U.S. citizen population accurately.
The Federal Jury Selection and Service Act of 1968 declares “[i]t is the policy of the United States that all litigants in Federal courts entitled to a trial by jury shall have the right to . . . juries . . . from a fair cross section of the community . . .” 28 U.S.C. § 1861. The Act recognizes that voter lists are the primary source for jury impanelment lists but encourages federal courts to “prescribe some other source or sources . . . where necessary to foster the policy [of representation of a cross section].” 28 U.S.C. § 1863(b)(2); § 1861. In relevant part to this article, the two major requirements an individual must satisfy to be legally qualified to serve on a federal jury is that he or she (1) is a United States citizen and (2) is at least 18 years old. See 28 U.S.C. § 1865(b). Accordingly, voter rolls have historically been a widely accepted method used to create jury panels. In fact, there are currently eight districts in the Ninth Circuit that still utilize only voter lists for populating their jury panels: Alaska, Arizona, Central District of California, Southern District of California, Guam, Nevada, Northern Mariana Islands, and Oregon. However, voter rolls present a wide array of shortcomings that impede upon attaining jury inclusiveness.
Voter lists fail to constitute a “fair cross section of the community” primarily because minorities, the young, and the poor tend to register to vote and vote at lower rates than the remainder of the eligible population. See Jeffrey Abramson, “We, The Jury: The Jury System and the Ideal of Democracy,” at p. 128 (1994). Indeed, national census statistics reveal, “voter registration lists tend to disproportionately represent persons when compared to the total U.S. citizen population in certain age, income, employment classifications, and education categories.” First Report, p. 4. This phenomenon can be attributed in part to the failure of voter registration lists to keep up with the progression of technology, and as a result, voter lists ultimately fail to capture an accurate composition of eligible citizens. To illustrate, PEW researchers estimate at least 51 million eligible U.S. citizens are unregistered, representing more than 24 percent of the eligible population. See PEW, Election Initiatives “Inaccurate, Costly, and Inefficient: Evidence That America’s Voter Registration System Needs an Upgrade,” February 2012, p. 8. One reason for such a significant number of unregistered citizens is that archaic, “paper-based processes” used for voter registration fail to keep up with changes in individuals’ names, addresses, and/or party affiliations, thus, resulting in inaccurate and incomplete data.
The Ninth Circuit’s reach fares slightly better than the U.S. overall in that voter registration lists contain approximately 66 percent of the adult citizen population in the states that comprise the circuit. However, these percentages are wholly inadequate in light of the benchmarks for adequate source list coverage established by the American Bar Association (80 percent) and the National Center for State Courts (85 percent).
State programs, such as California’s New Motor Voter Program, are working to increase voter registration and will ultimately enhance inclusiveness for jury pools. See generally AB 1461. In April 2018, the California DMV began to automatically register qualified driver’s license applicants to vote when they renew or obtain a driver’s license, unless the applicant expressly opts out. Excluded from automatic voter registration are undocumented Californians who maintain drivers’ licenses pursuant to AB 60. See California Secretary of State, California Motor Voter, located at https://www.sos.ca.gov/ elections/california-motor-voter/. Under the program, the DMV sends voter information electronically to the California Secretary of State’s Office, which then verifies citizenship requirements. Importantly, the DMV and SOS will work conjunctively to ensure that individuals with AB 60 drivers’ licenses are not eligible to participate in the program.
California DMV spokesperson Jessica Gonzalez reported that the DMV has “programming in place” to prevent inadvertent voter registration of non-citizens. Moreover, Secretary of State Alex Padilla assures the security of voter registration under the new law, as potential voters will “have to demonstrate proof of age, [and] the vast majority of time people are showing a birth certificate or a passport, which also reflects citizenship. That’s arguably more secure than someone checking a box under penalty of perjury.” Samantha Lachman, Huffington Post, Jerry Brown Signs Automatic Voter Registration in California, October 10, 2015, at https://www.huffingtonpost.com/entry/automatic-voter-registration-california_us_561680d5e4b0082030a15119.
Lastly, voter pre-registration is available under the program for 16 and 17-year-olds, ensuring a greater presence of the younger population on future jury panels. Undoubtedly, this law advances the goal of attaining more representative jury pools for the remaining California district courts that have not yet added drivers’ license lists to their master wheels.
The committee is confident that supplementing current voter registration lists with drivers’ license lists would provide the most comprehensive coverage of eligible citizens—drivers’ license lists alone account for “more than 90 percent of the adult citizen population in the Ninth Circuit states.” First Report at p. 4. Accordingly, adding drivers’ license lists to federal impanelment wheels would ensure superior reach to all eligible U.S. citizens, increase public participation, significantly expand jury inclusiveness, and bolster the integrity of the justice system.