EAC files its response in proof-of-citizenship case

Posted by AzBlueMeanie:

Arizona Attorney General Tom "banned for life by the SEC" Horne and Secretary of State Ken "Birther" Bennett are in U.S. District Court in Kansas, Kris W. Kobach et al. v. United States Election Assistance Commission (13-4095-EFM-DJW) suing the federal Election Assistance Commission (EAC) and threatening to impose a two-tier system for voting in Arizona and Kansas based upon whether you registered to vote with the Arizona voter registration form or the federal motor-voter form (NVRA). The Judge in his Order Remanding Matter to EAC for Final Agency Action (.pdf) gave the EAC until January 17 to respond to the order of the Court.

The EAC filed its response just minutes before the midnight deadline. Read the richly detailed 46-page EAC Final Decision on Proof of Citizenship Requests (.pdf). A bullet point summary of the EAC analysis follows:

  • Congress specifically considered and rejected proof-of-citizenship requirements whn enacting the NVRA.
  • The requested proof-of-citizenship requirements are inconsistent with the EAC's NVRA regualtions.
  • The requested proof-of-citizenship requirements are inconsistent with the EAC's prior determinations.
  • The Supreme Court's Inter-Tribal Council opinion guides the EAC's assessment of the states' requests.
  • The states' requested proof-of-citizenship instructions would require applicants to submit more information than is necessary to enable election officials to assess eligibility.
  • The requested changes would undermine the purpose of the NVRA.
  • The requested proof-of-citizenship requirements are not similar to Louisiana's request for modifications to the state-specific instructions.
  • The decision by the Federal Voting Assistance Program to grant Arizona's request has no bearing on the state's requests to the EAC.

CONCLUSION: "For the foregoing reasons, the Commission DENIES the States’ requests."

In short, go pound sand.

Rick Hasen posts at Electionlawbog.com, Election Assistance Commission Issues Controversial Decision Without Commissioners and Approaching Midnight Deadline:

In an ongoing dispute between the federal government and the states of Arizona and Kansas over voter registration (which already earlier made it to the Supreme Court), the U.S. Election Assistance Commission issued a decision only minutes before a court-imposed deadline to respond. What makes the order even more remarkable is that the EAC issued its decision without any of its four commissioners (thanks to a stalemate in Congress over whether the EAC should exist at all).

At issue is whether the EAC would modify a universal voting form used throughout the U.S. for voter registration (as mandated by the 1993 National Voter Registration Act—or “motor voter”) to allow for the states of Kansas, Arizona, and Georgia to demand documentary proof of citizenship for voters who register for the first time by mail.  The EAC initially failed to act on Arizona’s request. In the Supreme Court’s Arizona v. Intertribal Council opinion from last term, the Supreme Court rejected Arizona’s challenge but gave Arizona a roadmap to further challenge the issue. (See The Supreme Court Gives States New Weapons in the Voting Wars, Daily Beast, June 17, 2013).

In the Intertribal opinion, Justice Scalia noted the odd issue of how the EAC might respond if it has no commissioners thanks to Senate deadlock. It is therefore not clear whether the EAC executive director has the authority to issue the memorandum issued tonight. [The Final Decision of the EAC has a detailed explanation of how the Executive Director has the authority to respond to the Court's order.] Even if it does, it is unclear whether it is entitled to any deference in a judicial proceeding. [Excellent point.] These are very complex administrative law issues and we will have to see how the question get resolved.

Even past the administrative law issues, there are then complex issues of statutory construction and deference to earlier agency determinations which will come up.  It is worth noting that the initial dispute over what do to about Arizona’s request marked the beginning of a period of partisan discord at the EAC, as I describe in The Voting Wars.

Stay tuned.  This is far from over.

The matter is now back before the Judge in the U.S. District Court in Kansas. As Rick Hasen says, stay tuned.

Comments are closed.