Nonpartisan Voter Registration Drives

Nonpartisan Voter Registration Drives
and Get-Out-The-Vote Drives

A nonprofit may do nonpartisan voter registration and it may do nonpartisan get-out-the-vote campaigns (“GOTV”) without jeopardizing its federal tax exemption. The IRS Exempt Organization Division has made clear to nonprofit representatives that no matter how important the outcome of an election may be to a nonprofit, partisan political campaigning (which, of course, includes partisan voter registration and GOTV) by nonprofits is strictly prohibited by the tax code. Indeed, the Voter Registration Act of 1993 explicitly encourages nonprofits to do nonpartisan voter registration, and the fact that federal law encourages nonprofits to do nonpartisan voter registration should quell a lot of fears about whether nonprofits are allowed to do it. While there is no similar statutory encouragement for nonpartisan GOTV drives, the law is very clear that they may be done.

The nonprofits we are referring to are the 501(c)(3) nonprofits, and the tax rule we are referring to calls for an organization’s tax exemption to be revoked if it engages in any political campaign.

This memo explains how nonprofit organizations can do “nonpartisan” voter registration and GOTV. As a preliminary point, it should be kept in mind that these rules apply only to the organizations themselves and not to staff or board members who act as individuals in their own private capacity and not as agents of their organizations. They may engage in any kind of voter registration or GOTV drive that they want, partisan or nonpartisan, provided that it is clear that they are acting in their individual capacities.

“Nonpartisan” means that one is not backing or helping in any way any candidate or political party, and that one is not opposing any candidate or party. The simple idea is that you are doing voter registration and GOTV drives as good government efforts. You are promoting pure democracy. Your attitude in effect should be: “We don’t care who you vote for or what your views on policy may be, but we do think that whatever your views are, you ought to vote. That’s what makes the system work.”

While federal law encourages nonpartisan voter registration, the IRS is deadly serious about insisting that these activities be nonpartisan. Representatives of the IRS Exempt Organization Division have told nonprofit representatives that no matter how important the outcome of an election may be to a nonprofit, partisan political campaigning (which, of course, includes partisan voter registration and GOTV) by nonprofits is strictly prohibited by the tax code.

Let me quote from a leading legal authority on the subject: Nonpartisanship requires that a voter participation program must not explicitly or implicitly endorse or oppose any candidate or party. Every aspect of the [nonprofit’s] program must be scrutinized to ensure that there is no reasonable basis to infer, from the way the program is conducted, any bias or preference [with respect to a candidate or party].”

Two Tough Questions About Nonpartisanship

Targeting Groups Who, If They Vote, Are Certain To Vote One Way – You might wonder whether a voter registration or GOTV drive can be nonpartisan if it is conducted in a neighborhood where virtually all of the people who are being asked to register or vote are strongly sympathetic to one party or candidate. Can this be done? Yes, it can be, if it is conducted in a nonpartisan way and the groups the nonprofit targets are historically under-represented in the political process. Therefore, a voter registration or GOTV drive directed at poor or minority groups known to be politically disadvantaged is all right even though the results of the efforts could ultimately favor one particular candidate. And, if the neighborhood is the community which the nonprofit serves, it is not even necessary that the group targeted be politically disadvantaged. The idea here is that this population is your natural constituency. You have selected them for your drive because they are the people you work with and care about. You are empowering them by helping them participate in the political process and such an objective is an entirely appropriate goal for any nonprofit. The target audience need not be confined to any geographic district. If your organization works citywide, for example, with the mentally ill or the homeless and your campaign targets that group for your voter program, then even through it is likely that your audience will have a specific preference, if the campaign is conducted in a nonpartisan way, there will be no problem.

Talking About Issues While Doing Voter Registration or GOTV – Frequently, it is hard to persuade people to vote. If you can tell them about the importance of an election because of the importance of the issues that are involved (e.g., severe funding cuts to social programs or the recognition of gay marriages), they might be more likely to vote. Can you do this in connection with a voter registration or GOTV drive? This is tricky. It would probably be best if you did not. But it may be the case that you can. For instance, the authority quoted above has this to say on the subject.

“It is clearly permissible for a [nonprofit] to try to persuade people to register and vote by emphasizing that the election’s outcome will influence government policy on issues of importance to them. This is so even if the issues are controversial, in the sense of generating strongly-held opposing views within the community. But the focus of the [nonprofit’s] efforts must be on the issues, not on the candidates.”

The crux here is that it is safe to talk about issues when the issues are broadly defined so that some of the issues you are talking about may not be at play in the particular election for which you are trying to get people to vote. But if the issues you are raising are narrow in scope (e.g., welfare reform) and the candidates running in the district in question are clearly associated with one side of the issue or the other, there may be a problem.

Some Dos and Don’ts

To conclude, we offer some practical DOS and don’Ts to help give you a better idea of how to conduct a nonpartisan voter program. First the don’Ts

- Never mention a candidate’s or a party’s name.

- If asked how you plan to vote, do not answer the question.

- If you are asked what party you prefer, do not answer the question. Rather explain that your purpose is to promote the democratic process and not particular candidates.

- Do not ask the persons you are working with how they plan to vote or what their party preference is or make any effort to find out their allegiance to any candidate or party – whether directly or indirectly.

- Do not select a target area or group because you believe the voters in that group or areas will favor a particular candidate even if the candidate is a member of a politically disadvantaged group that your organization serves.

- Do not publicize which candidates agree with the position your organization supports.

- Avoid any appearance that your voter registration or GOTV activities are timed to coincide with politically significant events in a particular candidate’s campaign.

Now for some DOS:

- It is important to be able to demonstrate that you chose your target audience and location on a nonpartisan basis. As explained above, if you select your clients and your neighborhood, that is entirely acceptable. It would be helpful if, before you started the program, you had a resolution in your board minutes that you selected your own neighborhood and your own clients as the site and target audience for your nonpartisan voter program because it is an objective of your program to help empower the people you serve by helping them participate in the political process.

- Before a program is actually implemented, it is important to get together with those who will conduct the program and carefully explain to them what has to be done to assure that the program is nonpartisan. As important as anything for such a meeting would be the ability to answer any questions they might have. It might be a good idea to ask them to imagine that while they are conducting the campaign there is someone in the room from the “other” side with an audio cassette taping everything that is said.

- If it is at all possible, it is probably a good idea to have at least two people present from your organization when this kind of work in going on. Then, if you are questioned after the fact, you can have someone testify that nobody said anything of a partisan nature.

- If you plan to use issue advocacy to motivate potential voters, keep the issues broad or be sure you identify a wide range of issues, and be careful to follow the advice above in the section titled, "Talking About Issues..."