GOP war on voting: Kansas Federal Judge orders EAC to enforce proof-of-citizenship requirement for voter registration


gavelJudge Eric Melgren for the U.S. District Court of Kansas ruled today that the federal Election Assistance Commission (EAC) lacks the authority to deny the states of Kansas and Arizona ther request to modify the federal motor-voter voter registration form, and has ordered the EAC to enforce the proof-of-citizenship requirement to register to vote under Kansas and Arizona law. Kansas, Arizona prevail in voter citizenship suit:

A judge in Wichita has ordered a federal commission to enforce Kansas and Arizona laws requiring documents proving citizenship for new voters.

U.S. District Judge Eric Melgren ordered the Election Assistance Commission to immediately add Kansas- and Arizona-specific instructions to the federal voter registration form.

Those instructions will say that new registrants will have to provide documents proving citizenship before being allowed to vote, as required by state law.

For most people, that means either a birth certificate or passport. Other forms of proof are accepted in special cases including veterans, naturalized citizens, Americans born overseas and members of federally recognized tribes.

The requirement is separate from the companion provision of state law that requires voters to show their driver’s license or other state-issued photo ID when they vote at the polls.

At present, about 15,000 Kansas registrants have their voting privileges suspended because of failure to provide proof of their citizenship.

The court decision is a significant victory for Kansas Secretary of State Kris Kobach, who shepherded the state’s proof-of-citizenship law through the Legislature and was tapped by Attorney General Derek Schmidt to defend the law in court. Arizona was a co-plaintiff in the Wichita case after a Supreme Court ruling went against its proof-of-citizenship law last year.

“It’s a very well-written decision ordering the commission to take action immediately,” Kobach said. “The only unknown is what the Obama Justice Department decides to do next.”

The Justice Department has appealed previous proof-of-citizenship cases all the way to the Supreme Court, “so we’ll see what they want to do,” Kobach said.

He said he soon will ask Melgren to dismiss as moot a case brought by the American Civil Liberties Union challenging the proof-of-citizenship law.

Melgren, a former U.S. attorney for Kansas during the George W. Bush Administration, did not address the constitutionality of the proof-of-citizenship requirement itself.

His ruling primarily found that the Election Assistance Commission doesn’t have the authority to reject Kansas’ and Arizona’s request that their proof-of-citizenship requirements be added to the federal voting registration form.

What the reporting does not explain is that the EAC does not have authority to deny the request of Kansas and Arizona because the EAC does not currently have any commissioners, and thus does not have a quorum to act on any such request.

The Court previously ordered the Executive Director of the EAC to submit a position on behalf of the EAC (which denied the requests), leaving open the question whether the Executive Director could act on behalf of the EAC. Today’s decision leaves that question unresolved.

And why does the EAC not have any commissioners, you ask? Because several years ago Tea-Publicans in Congress declared war on the EAC, filibustering any nomination of commissioners to the EAC, and introducing legislation to eliminate the EAC.

Here is the Memorandum and Order (.pdf).

Rick Hasen writes at Electionlawblog, Big News from Federal Court: Republican States May Soon Demand Proof of Citizenship for Voting in Federal Elections:

The upshot of this opinion, if it stands on appeal, is that states with Republican legislatures and/or Republican chief election officials are likely to require documentary proof of citizenship for voting, making it harder for Democrats to pursue a relatively simple method of voter registration.

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In today’s decision, the federal district court makes three essential moves.

1. The judge expresses doubt, without resolving the question, whether the Executive Director of the EAC had the authority to decide this question.  The court said it was not necessary to resolve the question because even if the EAC had a full set of commissioners and voted 4-0 to reject Arizona’s request, the EAC would still lose for other reasons.

2. The judge expresses doubt, without resolving the question, whether Congress would have the authority in the NVRA to pass a law about voter registration which would block states from collecting information, such as citizenship information, necessary to verify voter qualifications. Again, it said it did not reach the issue.

3. The judge concludes that Congress in the NVRA did not expressly preempt states from requiring citizenship information (if it did, it would raise serious constitutional questions about the NVRA). In the absence of express preemption, and in light of the doubtful constitutional power to prevent states from collecting this information, the EAC was without power to deny Arizona and Kansas’s request to include the information on the federal form.

U.S. Supreme Court Justice Antonin Scalia, who created this road map to appeal for Arizona and Kansas, is awaiting this case on appeal to the U.S. Supreme Court.