10th Circuit Court of Appeals strikes down proof-of-citizenship requirement for National Voter Registration Form

A panel of the 10th Circuit Court of Appeals on Friday, in a unanimous decision, struck down Arizona’s Prop. 200 (2004) proof-of-citizenship requirement for voter registration and a similar provision of Kansas law in Kobach v. U.S. Election Assistance Commission (Nos. 14-3062 and 14-3072). Specifically, this case concerns whether Arizona and Kansas have to accept the federal National Voter Registration Form without additional proof of citizenship. The Arizona Voter Registration Form proof-of-citizenship requirement has previously been upheld by the Courts.

Read the Opinion Here (.pdf).

The Kansas City Star reports, Federal appeals court rejects citizenship proof rule for Kansas voters:

A federal appeals court on Friday handed a significant setback to Kansas Secretary of State Kris Kobach’s efforts to require all new and re-registering voters to provide a document proving citizenship.

The 10th Circuit Court of Appeals in Denver ruled that Kansas cannot require proof-of-citizenship documents — almost always a birth certificate or passport — from prospective voters who register using a federal voter registration form. The court also said that a federal agency doesn’t have to alter the form to fit Kansas requirements.

Arizona has a similar proof-of-citzenship requirement, and Kobach argued the case on behalf of both states in conjunction with Arizona Secretary of State Ken Bennett.

The Kansas requirement is separate from a section of state law requiring voters to show photo ID at the polls.

U.S. District Judge Eric Melgren in Wichita had ruled that the Election Assistance Commission, a federal agency, was required to add state-specific citizenship proof requirements to the instructions for using the federal form in Kansas and Arizona. The appeals court overturned Melgren’s ruling.

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The federal form, enabled by the National Voting Rights Act, was meant to create a common voter registration card that could be used to register across the country.

Most Kansas voters register with a state form available at election and drivers license offices around the state. The federal form generally has to be downloaded from the Internet.

The primary difference between the federal and Kansas registration forms is that the Kansas form requires prospective voters to show documents proving citizenship, while the federal form requires a signature under penalty of perjury to prove citizenship.

As part of its ruling, the court said Kansas and Arizona have other ways to check voter citizenship that are less burdensome for voters than requiring them to provide their birth records.

A decision by the executive director of the federal commission “discussed in significant detail no fewer than five alternatives to requiring documentary evidence of citizenship that states can use to ensure that noncitizens do not register using the Federal Form,” the court ruling said. “Kobach and Bennett do not dispute that these means exist and merely contend that they are overly onerous.”

The appeals court also rejected Kobach’s contention that the executive director of the commission didn’t have the authority to reject the state’s request.

The court said it was a valid exercise of power by the executive director in the absence of a quorum of commissioners. The commission currently has no members because of Senate gridlock over President Barack Obama’s nominees.

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Using the federal form, Kansans can register and vote in federal elections for president and Congress. Federal-form-registered voters are not allowed to vote in state or local elections, and their signatures are not considered valid on local petitions.

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Voters who use a state form to register but don’t provide the documents proving citizenship are not allowed to vote in any election. As of this week, about 21,000 registrants have seen their voting privileges suspended because of lack of citizenship proof.

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The appellate decision could revive a more-or-less dormant case in Topeka in which the American Civil Liberties Union has alleged that a two-tier voting system is unconstitutional.

If the ACLU should win that case, voters would be able to use the federal form to register to vote in all elections in Kansas.

The appeals court signaled that it did not think federal law requires Kobach to let federally registered voters participate in state elections.

“The (Voting Rights Act) therefore leaves Arizona and Kansas free to choose whether to impose a documentary evidence of citizenship requirement on voters in state elections,” the court wrote.

However, the court added a footnote that it was not ruling on whether the two-tier system violates the state’s law or state constitution.

That means the legality of a two-tier system will likely be decided by the Kansas Supreme Court instead of the U.S. Supreme Court.

In Arizona, Howard Fischer adds, Proof-of-citizenship rule for voters is voided:

Friday’s ruling is a major setback for Arizona, which has been trying for years to enforce a 2004 voter-approved measure mandating such proof.

How many people might be affected, though, remains unclear.
In Maricopa County alone, about 33,000 people signed up to vote using the federal form out of close to 2 million registered voters.

Karen Osborne, the county’s election director, said she managed to subsequently get citizenship proof from all but about 300 of them, so they could vote both on federal and state races. The remaining approximately 300, put in a separate category of what became a “dual-track” voting system, could vote only for candidates for federal offices.

If Friday’s ruling is not overturned, voter registration groups are far more likely to sign people up with the federal form simply because they do not have to also submit that citizenship proof, even if that means they can vote only for president and members of Congress.

The implications, though, may be broader.

“The fact that we’ve won this now gives more solid ground to challenge this two classes of voters in Arizona,” said Sam Wercinski, executive director of the Arizona Advocacy Network, with one group that can vote in all races and the other limited to federal elections.

Elisabeth MacNamara, national president of the League of Women Voters, agreed it is questionable whether a dual-track system can survive a constitutional challenge.

Legal issues aside, she said voters may simply decide the costs of running two election systems — perhaps $200,000 in Arizona for what turned out to be 21 voters — isn’t worth it, given the lack of evidence illegal immigrants are trying to vote.

And if the dual-track system is voided, whether for legal or political reasons, anyone who registers with a federal form, with or without proof of citizenship, could vote for any candidate for any office.

Bennett said the case will be appealed.

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Last year the U.S. Supreme Court rejected Arizona’s attempt to enforce the proof-of-citizenship requirement on those using the federal form, but referred the states to the commission to request a change in the form, which was rejected.

“There are at least five alternate means available to the states to enforce their laws,” Lucero wrote in Friday’s ruling.

That list starts with the fact that it is a crime to illegally register to vote, and noncitizens who vote can be deported. Other options include:

• Coordinating with the Motor Vehicle Division, as driver’s licenses are available only to those who can prove citizenship.
• Comparing registration requests with responses to report for jury duty.
• Using the federal government’s database of people who are not citizens but in this country legally.
• Accessing a national database of birth records.

Justice Antonin Scalia, who suggested this convoluted legal process to Kansas and Arizona in his earlier Supreme Court opinion, is salivating at the prospect of judicially rewriting the federal law in favor of “states’ rights” when this case winds its way back to the U.S. Supreme Court. This is a temporary victory, I fear.