10th Circuit grants stay pending appeal in proof-of-citizenship voter registration case

The 10th Circuit Court of Appeals has granted a stay pending the appeal of the district court order in Kobach v. U.S. Election Assistance Commission (EAC) requiring the EAC to modify the federal National Voter Registration form to require documentary proof of citizenship for Arizona and Kansas residents. Court extends stay in Arizona, Kansas voting case:

A federal appeals court has delivered a new setback to officials in Arizona and Kansas, ruling that residents in those states can continue registering to vote using a federal form without having to show proof of citizenship.

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Earlier this month, the 10th U.S. Circuit Court of Appeals in Denver issued a stay of a lower court ruling ordering the U.S. Election Assistance Commission to immediately modify its federal voter registration form to add special instructions for Arizona and Kansas residents about those states’ proof-of-citizenship requirements.

Late Monday, the appeals court extended its block on the lower court order and granted an expedited hearing on the merits of the case sought by the federal commission and voting rights groups.

Kobach has said if the courts do not allow the federal form to be revised, he would implement a system in Kansas allowing people who register using the federal form to vote only in federal races such as for president and members of Congress.

Read the Stay Order here (.pdf).

Arizona Secretary of State Ken “Birther” Bennett is already implementing the dual election system referenced by Kobach in Arizona.

A stay is for the purpose of maintaining the status quo. The status quo in Arizona is that anyone registered to vote is qualified to vote for all offices and measures on the ballot. I would argue that this proposed dual election system violates the stay order of the 10th Circuit Court.

The dual election system that Secretary Bennett is implementing is based upon an Attorney General Opinion from Tom “banned for life by the SEC” Horne, Arizona’s poster boy for political corruption. Arizona plans dual system for voting:

Arizona elections officials are preparing to use a dual-track voting system in next year’s elections that would require the use of two different ballots, depending on how a voter was registered.

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The shift was triggered by an opinion Monday from state Attorney General Tom Horne. [Read AG Opinion No. 113-011 Here (.pdf).]

Both Horne and Secretary of State Ken Bennett said the move is necessary to comply with an Arizona voter mandate as well as federal law.

The new procedure singles out the several thousand Arizonans who registered to vote using the federal registration form, which does not require documents to prove U.S. citizenship.

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Horne issued his opinion in response to questions Bennett posed after the U.S. Supreme Court on June 17 struck down parts of an Arizona voter-registration law [in Arizona v. Inter Tribal Council of Arizona, Inc., 133 S.Ct. 2247 (2013).]

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Horne’s opinion states: “Arizona law does not preclude using one form of ballots for federal offices only and another form for all state offices and measures.”

Horne references Gonzalez v. Arizona, No. CV-06-1268-PHX-ROS, a case consolidated with the U.S. Supreme Court appeal in Arizona v. Inter Tribal Council of Arizona, Inc., 133 S.Ct. 2247 (2013). After the U.S. Supreme Court ruled in favor of the plaintiffs and against Arizona, the District Court for Arizona entered its Final Judgment (.pdf) in Gonzalez v. Arizona on September 11, 2013. Horne’s opinion relies on Section 3, paragraph C of the relief ordered:

C. For each voter registration applicant who submits a Federal Form that meets the requirements of the Federal Form, but does not contain the information required by A.R.S. §16-166(F), Defendants shall create a record for a successful registration of that individual and promptly notify that registrant of his or her eligibility to vote in elections for Federal office. (emphasis added).

Horne’s opinion is based upon his interpretation of federal court decisions. There is no statutory basis in Arizona law permitting the Secretary of State to impose a dual election system.

Horne’s opinion further relies upon dicta in the U.S. Supreme Court decision in Young v. Fordice, 520 U.S. 273 (1997) to make the specious argument that the U.S. Supreme Court has not prohibited a state from imposing a dual voting system. That’s only because the Court has never directly addressed the issue (it was not at issue in Young, which was about preclearance under Section 5 of the Voting Rights Act.)

Much of Horne’s opinion argues in the negative, for example, “neither the United States Constitution nor the Arizona Constitution forbids dual registration,” rather than a positive affirmation of constitutional or Arizona statutory law authorizing it. Horne would be among the first to argue against any such implied powers by the federal government, yet here he is arguing for sweeping implied powers to disenfranchise U.S. citizens of their vote based solely upon the arbitrary and capricious standard of the voter registration form they used to register. This is a violation of equal protection and the privileges and immunities of U.S. citizens under the 14th Amendment.

In Section 4 of the Final Judgment in Gonzalez v. Arizona, the Court indicated it “may revisit the relief ordered in this Judgment,” based upon the outcome of the future litigation in Kobach v. U.S. Election Assistance Commission.

I would argue that the 10th Circuit Court of Appeals stay order in Kobach v. U.S. Election Assistance Commission is sufficient grounds for Plaintiffs attorneys in Gonzalez v. Arizona to seek a clarification from the District Court of Arizona regarding the dual registration system, and perhaps litigate the proposed dual election system.

I spoke with one of the attorneys involved in this litigation over the weekend and was advised that she is seeking appropriate plaintiffs to challenge the dual election system being implemented by Secretary Bennett, on the grounds that there is no constitutional or statutory authorization for it.  An appropriate plaintiff is someone who registered to vote using the National Voter Registration form because  he or she did not possess or have access to the documents required by Arizona for the state voter registration form. Rather than publish the attorney’s name and contact information here, you can contact the Arizona ACLU and they can put you in touch with the attorney.

UPDATE: On May 29th, the Tenth Circuit set a June 30 deadline for the states of Kansas and Arizona to file their brief in Kobach v U.S. Election Assistance Commission, 14-3062.