States want to use Medicaid data to automatically register potential voters. Will the federal government give them a green light?

Looking beyond the DMV for automatic voter registration

The digital magazine Bolts recently covered an issue that has largely flown under the radar, at least in health policy circles: automatic voter registration (AVR) in Medicaid. The idea is straightforward enough: when applying for Medicaid, people are generally providing the information required to determine their eligibility to vote: age, residency, and immigration status.¹ But, unlike the use of DMVs for automatic voter registration (fairly common, though using different approaches), implementing AVR via Medicaid requires sign-off from the federal Centers for Medicare and Medicaid Services (CMS), part of the Department of Health and Human Services (HHS). 

Getting federal sign-off has proven a sticking point for states with Medicaid AVR ambitions, including Oregon and Colorado. This matters because it meaningfully restricts outreach to a hard-to-reach population.

An estimated 85% of all Oregonians, about 170,000, who are not registered to vote are registered in Medicaid.

And so Medicaid AVR represents an incredible opportunity to make it easier for them to participate. CMS has held up similar proposals in other states and told Bolts it’s still reviewing the issue. Medicaid is a program administered by states but regulated by the federal government, which largely bars a state’s Medicaid office from disclosing information to other agencies without HHS authorization.

The hand-wringing of federal officials about what they can and can't do isn't completely baseless. Here is a brief but somewhat weedy legal detour: statute “restrict[s] the use or disclosure of information concerning applicants and recipients to purposes directly connected with the administration of the plan.” (The statutory text also explicitly permits states to use this information to enroll kids into free or reduced meal programs). The regulations interpreting that statute currently construe "purposes directly connected with the administration of the plan" quite narrowly. 

CMS could be more creative in their interpretation of how Medicaid applicants' information can be used. Colorado’s Secretary of State, Jena Griswold, thinks the agency's current reluctance reflects a misreading of the law, and wants more direct guidance from federal officials: “We should be working to streamline people’s interactions with the government.”

A more permissive approach would also be consistent with another law, namely the National Voter Registration Act (NVRA, also known as the Motor Voter law). Under the NVRA, state Medicaid agencies are considered "voter registration agencies," meaning they're required to offer voter registration forms and assistance completing voter registration. Automatically enrolling clearly eligible people to vote (with an opt-out on the back end) is arguably the most robust form of assistance a state agency could offer.

A long-term pet peeve of voting advocates is that the NVRA has never lived up to its potential. States tend to focus their AVR efforts to the DMV, and make half-hearted efforts to use citizen-state interactions in the social safety net space. AVR offers a chance to super-charge the impact of the legislation. The U.S. Commission on Civil Rights submitted a report to the White House in 2016 saying that: “Integrating voter registration procedures within existing agency processes, including automatic opt out and online processes, is essential to effective National Voter Registration Act compliance.”

Building on that point, Medicaid AVR also seems consistent with the part of the NVRA requiring that agencies offer the "same degree of assistance" as they offer for completion of the agency's own forms: states are required to automatically renew eligible beneficiaries' Medicaid coverage without sending them a renewal form wherever possible. So, there's a world where CMS chooses to interpret "administration" of Medicaid to include compliance with the NVRA, allowing states to share applicant information for purposes of voter registration—it might require a new, creative, way of thinking, but doesn't strike me as outlandish.² 

So, we have two pieces of legislation, one which seems to discourage the use of Medicaid data for almost any purpose other than providing Medicaid services, and another which views Medicaid as a means to help people register to vote. However, federal agencies, and especially their legal counsels, tend to be more small-c conservative than creative when it comes to expanding their regulatory interpretations. Because this plausibly falls into an interpretive gray area, there may also be some concern that litigation would follow any exercise in creativity.³ 

What else can states do? And what are the drawbacks of other approaches?

That doesn't have to be the end of the story, though—states can be creative even if CMS won't be. 

The hurdles described above inhibit state efforts to implement AVR through a “state plan amendment,” an ordinary, state-directed tweak to their program that needs to fall inside existing program rules. Another way states can modify their Medicaid programs is through waivers, which make those rules bendy. The caveat with these waivers is that bending the rules needs to be in service of promoting objectives of the Medicaid program.⁴

Will CMS recognize promoting civic health a plausible way to promote the objectives of the Medicaid program? You can certainly make the case. Moreover, facilitating AVR in Medicaid, whether through state plan amendments or waivers, would be consistent with the Biden administration's executive order on promoting access to voting and the executive order directing agencies to reduce administrative burdens in government programs. 

If CMS isn't enthusiastic about letting states do this by waiver, states still have another option: adding a checkbox to applications letting people opt out of voter registration during the application process. These “front-end” opt-out systems aren’t the purest form of AVR, but they still have the effect of reducing the hassle costs of voter registration.

Massachusetts recently implemented this policy in their Medicaid program, allowing any state agency collecting the appropriate data to offer AVR, including Mass Health. Applications for health insurance through the Mass Health online portal which generates a pop-up message telling users that their information will be used to register them, but also offering them a check box if they wish to opt out. The introduction of this system saw 165,539 people submit registration information via social services agencies in 2021-2022, a five-fold increase over the previous election cycle where the state used an opt-in system. Of those 165,539 submissions, 25,672 were new registrations, 105,736 were updates to existing registrations, 33,832 were duplicates of existing registrations, and 1,299 were invalid and not processed.

Front-end opt-out systems have the advantage of allaying concerns of privacy advocates and people who think some Medicaid applicants might not want to register to vote.⁵ Changing the default from opt-in to opt-out is also one of the best proven behavioral nudges, used, for example, by many countries to increase participation in retirement plans.

But front-end opt-out systems also have significant limits. Massachusetts’ 165,539 voter registration submissions over a two-year period (an annual rate of 82,770) are relatively small compared to the roughly 1.25 million adults currently enrolled in Medicaid in Massachusetts. There are many potential causes for this relatively limited uptake. Front-end opt-out systems might work better online than on paper, which could limit who benefits from the AVR policy (though in practice, it seems like you could integrate this into a paper form). The Massachusetts AVR only appears to be integrated into their online application; the paper version includes a full voter registration form.

Another disadvantage is that some people might tick the box to opt out without reading, thinking that it's just one more step in the application process (think of terms-and-conditions checkboxes). Others might check the box based on incorrect belief that they are already registered to vote or that their registration information is current. Finally, these systems also only reach the “head of household,” the person completing the application and facing the opt-out question, leaving out spouses and dependent family members who are eligible to register. By contrast, the “gold standard” approach to AVR—the type already used in some DMVs across the county and proposed by Colorado, Oregon, and other states for Medicaid AVR—is to automatically register everyone on the application who is clearly eligible, then give them an opportunity to remove their registration on the back end via a mailer.

Streamlining voter registration through Medicaid has meaningful potential to expand the electorate while reducing the time tax imposed on people to engage with the government. If more broadly adopted, and partnered with other measures to reduce administrative burdens in the program, it might also help recontour Medicaid to be a more positive force for civic inclusion. To get there, CMS policymakers should look more closely at how to help given the seemingly conflicted legal framework around Medicaid and voter registration.

This column is a guest blog from Adrianna McIntyre, an Assistant Professor of Health Policy and Politics in the Department of Health Policy and Management at the Harvard T.H. Chan School of Public Health. She studies the politics of health reform and strategies to improve take-up and retention of subsidized health insurance and other social programs. She teaches political analysis and strategy for U.S. health policy. 

1. Only citizens and specific qualified non-citizens are eligible for Medicaid. The one other criterion that introduces a wrinkle for AVR is prior felony convictions. So far, there is no overlap between states actively exploring Medicaid AVR and states that impose voting restrictions after felony imprisonment. 

2. Less likely, but more enduringly effective—because a future administration couldn't walk it back through future rulemaking—Congress could create an explicit allowance for voter registration, as they did for free and reduced meals for children.

3. Consider the ACA's "family glitch"—an issue that made marketplace coverage inadvertently unaffordable for millions of people who would otherwise qualify for subsidies. The Obama administration did not pursue a regulatory fix, purportedly because they didn't think the statutory interpretation could be stretched in that way. However, in October of 2022, the Biden administration finalized a regulation that did just that; it's unclear whether anyone has standing to bring a lawsuit if they think the regulation is improper.

4. Legal challenges to Trump-era work requirements in Medicaid succeeded in part because they were found not to promote the objectives of the Medicaid program. This is also the basis on which the Biden administration withdrew pending work requirement waivers in 2021. 

5. It’s not obvious to me that we should be any more concerned about people not wanting to be registered in the “Medicaid application” context than we are in the “doing paperwork at the DMV” context, and automatic voter registration at DMVs with “back-end” opt-outs (mailers sent after registration) has already been adopted in several states.