An organization has novel way to get members to vote. But is it legal?

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Bruce Marks, CEO of the Neighborhood Assistance Corporation of America, speaks at a 2021 rally in Atlanta. The organization is requiring its 3.7 million members to vote. / AP

In America, we encourage voting as a civic duty, but an organization with millions of members is taking that obligation a step further. It’s requiring members to vote — or potentially lose their membership and the financial benefits that come with it.

The organization is the Neighborhood Assistance Corporation of America, which helps people get low-cost mortgages. NACA says it has 3.7 million members, including about 870,000 in the seven key swing states this election year.

“We’re not saying to people vote for a particular candidate,” says NACA CEO Bruce Marks. “We're saying that there's so much at stake in this election that you have to have your voice heard.”

Several legal scholars say they’ve never seen a policy like NACA’s before and aren’t sure if it violates the law.

“I think it's troubling,” says professor Rick Hasen, who directs the Safeguarding Democracy Project at UCLA Law.

NACA helps members get mortgages on very good terms: no down payment, no closing costs and below-market interest rates. The organization also wants its members — the vast majority of whom are working class and of color — to be engaged in civic life. But Marks says when NACA urges members to vote, not all of them follow through.

Marks says that’s a big reason NACA is making voting a condition of membership. The organization won’t kick out members if they don’t cast a ballot in this election, he adds, but it might in future federal elections.

“Obviously, this is a work in progress,” Marks says, “but we're going to be looking to see whether you voted.”

NACA can track that because voting participation records are public.

The organization is going all-out this year. Marks says NACA plans to canvas all 874,000 members in swing states, including more than 400,000 in Georgia.

Marks says NACA does not endorse candidates, but that its Economic Justice for All political action committee does back those who support affordable home ownership and economic justice issues.

Legal scholars say the organization’s new membership policy raises questions. Justin Levitt, who served in the Biden White House as senior policy adviser for democracy and voting rights, says a part of the U.S. criminal code makes it illegal to spend money to prompt someone to vote or to withhold their vote or to vote for a particular candidate. Levitt thinks that law, which has been around for nearly a century, could apply to NACA’s new policy.

Of course, NACA isn’t paying people to vote. But Levitt notes that removing someone as a member could effectively take away their opportunity for a low-cost mortgage.

That’s where Hasen of UCLA thinks there could be a problem. He cites an example involving Ben & Jerry’s. In 2008, the company planned to give away free ice cream to people who voted — that is, until Hasen pointed out that a voter giveaway could be illegal under federal law.

“Just because we don't want to induce people to vote for a material gain,” he says.

Hasen says that because of his intervention, Ben & Jerry’s had to offer free ice cream to everyone.

“I got free ice cream for children,” Hasen says.

Apprised of Levitt’s and Hasen’s concerns, Marks defends NACA’s new policy.

“We feel we're absolutely on firm legal grounds,” he says.

Marks contends that like any organization — say, the Elks — NACA is just setting the requirements for participation and membership. “That’s all we’re doing, same thing,” he says.

Of course, membership in the Elks doesn’t get you access to a low-cost mortgage.

Doug Fierberg, NACA’s outside general counsel, says requiring members to vote is a matter of integrity and values.

“NACA believes that it would be hypocritical for people organizing and talking about economic justice, organizing and talking about things that matter in the American economy, while standing on the sidelines and not voting,” Fierberg says.

Marks says members' response to the new policy has been overwhelmingly positive. Warren Gamble, who retired from the auto industry, said NACA enabled him to buy a home in Atlanta that he otherwise wouldn’t have been able to afford. He likes the new policy and believes in NACA’s tradition of activism.

“If you want to be part of NACA, you want to get all the benefits of all the hard work that everybody’s doing, you need to come to the table,” Gamble says.

But fellow NACA member Sylvia White, a financial adviser who lives in Maricopa, Ariz., has doubts. She thinks if the organization enforces its new voting rules, it could alienate some members — especially those who don’t like their options at the ballot box.

White says they might think, “ ‘Why are you trying to make me vote or do something that I don't want to do?’ People kind of rebel against that.”

Marks knows NACA may come in for criticism for requiring its members to vote, but he says that’s inevitable.

“Anytime you have an impact, you are going to get a pushback,” Marks says. “You wear that as a badge of honor.”