Legal challenges filed against Kansas, Arizona ‘two-tier’ voting system


Posted by AzBlueMeanie:

Eric Lach at Talking Points Memo reports Dual Attacks Take On Voting Restriction Efforts In Arizona, Kansas:

Just weeks after Kansas and Arizona made clear their intentions to move ahead with two-tier voting systems, legal efforts are being mounted to fight those plans.

On Thursday, the American Civil Liberties Union filed a lawsuit in Kansas directly challenging the state's two-tier system, where voters who show no proof of citizenship would be allowed only to vote in federal elections, not state or local elections. At the same time, the Brennan Center for Justice and the League of Women Voters of the United States teamed up to join the ongoing federal case that prompted Kansas and Arizona to start flirting with two tiers in the first place.

The ACLU case is straightforward. Filed in the Third Judicial Circuit in Topeka, Kan., the complaint argues that two-tier voting "divides registered voters in Kansas into two separate and unequal classes, with vastly different rights and privileges." According to USA Today, nearly 18,000 voters in Kansas who registered for the first time this year can vote in federal elections but not in state or local ones because they have not submitted citizenship documents.

"It all comes back to voters' equality," the ACLU's Molly Rugg wrote in a blog post on Thursday. "Kansas cannot treat equally qualified voters unequally on the whim of the Secretary of State. If you are qualified to vote in the presidential election, you are certainly qualified to vote in Kobach's re-election bid next year."

In both Kansas and Arizona, plans for two-tier systems began in the wake of Supreme Court's June ruling in Arizona v. Inter Tribal Council, the legal battle over Arizona's 2004 voter identification law. While the Supreme Court blocked the law, both Arizona and Kansas have focused on the wiggle-room the court left them. In August, the two states joined together to sue the U.S. Election Assistance Commission (EAC), the agency which maintains the federal voter registration form, in an attempt to force the agency to add proof-of-citizenship language to the state-specific instructions on the federal form. (Each state has state-specific instructions on the federal form.) And in the meantime, officials in both states made preparations for two-tiered systems.

That's where the Brennan Center for Justice and the League of Women Voters of the United States come in. On behalf of the League of Women Voters, the Brennan Center on Thursday submitted a motion to intervene as defendants in Kansas and Arizona's case against the EAC. As it stands, if the states win the case, they would no longer need two-tier voting to impose proof of citizenship requirements. If they lose, then two-tier voting's fate would depend, at least in part, on the ACLU case.

"The League has worked tirelessly to remove barriers from voting and advocate on behalf of the voting rights of all Americans," Elisabeth MacNamara, national president of the League of Women Voters, said in a written statement. "The gains that the League has worked for are now being threatened by the documentary proof-of-citizenship requirements that Arizona and Kansas seek to force into the Federal Form."

While the states' federal case against the EAC doesn't directly deal with the two-tier voting system, according to Wendy Weiser, who directs the Brennan Center's Democracy Program and is an attorney on the case, the stakes there could be even higher. According to Weiser, questions being raised by Kansas and Arizona in the case could threaten the national "motor voter" law, which made it easier to register to vote, as well as "a whole host of regulations past and future that have never before been questioned."

"It's very clear that they're challenging the statute itself, and Congress' authority, and they're raising a real novel theory that has never before been raised or adopted by any court," Weiser told TPM on Friday.

Press release from the Brennan Center for Justice, Brennan Center Challenges Kansas and Arizona Voter Registration Restrictions:

New York, N.Y. – The League of Women Voters of the United States and the organization’s Kansas and Arizona affiliates today joined a lawsuit arguing the new laws requiring proof of citizenship to register to vote in these states violate federal law.

The League of Women Voters operates one of the longest-running nonpartisan voter registration efforts in the nation. The documentary proof-of-citizenship requirements in Kansas and Arizona harm those registration efforts and undermine the League’s core mission of promoting voter participation, according to the motion submitted today by the Brennan Center for Justice at NYU School of Law, as well as pro bono counsel Kirkland & Ellis LLP and David G. Seely of the law firm Fleeson, Gooing, Coulson & Kitch, LLC.

“The Kansas and Arizona laws would make it harder for certain citizens to vote,” said Wendy Weiser, who directs the Brennan Center’s Democracy Program and represents the Leagues in this case. “The Supreme Court this year invalidated Arizona’s law and clearly confirmed Congress’s authority to protect the right to vote in federal elections. This lawsuit by Kansas and Arizona is a transparent attempt to undermine that authority, and it could seriously hurt voters.”

“The League has worked tirelessly to remove barriers from voting and advocate on behalf of the voting rights of all Americans,” said Elisabeth MacNamara, national League President. “The gains that the League has worked for are now being threatened by the documentary proof-of-citizenship requirements that Arizona and Kansas seek to force into the Federal Form.”

“The Arizona League had to drastically reduce our efforts to register voters when the state implemented this requirement a few years ago, because we did not have portable photocopy equipment,” said Barbara Klein of the League of Women Voters of Arizona. “This requirement drains our resources and harms our mission — encouraging voting and other forms of civic participation. Even when we did have access to copy equipment, our effectiveness in completing registrations was reduced as people did not carry the required documentation or were hesitant to share such personal and security-related information. Our members would volunteer many hours only to be blamed by potential voters who were angry and frustrated by these onerous requirements — all this making us unsuccessful in our mission to make voting an easy process. We’ve already won in the Supreme Court on this issue and are prepared to do what it takes to prevail again.”

“Kansans have not been well-served by this new requirement,” said Dolores Furtado, President of the League of Women Voters of Kansas. “Early implementation of this law has been chaotic with thousands of voter registrations held in suspense while citizens try to find or obtain appropriate documentation. When we make things complex, it confuses people and means fewer people are registering and planning to vote. In the end, the League can’t do its job, citizens are left out and the fabric of our democracy is weakened.”

“Kirkland & Ellis is honored to be part of the team that is seeking to defeat these extraneous and entirely unnecessary requirements — requirements that strike at the very heart of participatory democracy by substantially interfering with the right to vote, particularly among the poor, minorities, and other traditionally disenfranchised communities,” said Michael Keats of Kirkland & Ellis, who also represents the Leagues.

"Our firm is pleased to be able to assist the national, Kansas, and Arizona chapters of the League of Women Voters to present their unique perspective regarding voting rights in this important matter," said David G. Seely of Fleeson, Gooing, Coulson & Kitch. "Also, my mother is a member of the Kansas chapter, and it is nice to be on the same team with her."

The motion allows the League groups to join the U.S. Election Assistance Commission (EAC) as defendants in the suit, Kris W. Kobach et al. v. United States Election Assistance Commission, filed by Arizona and Kansas officials in August.

It follows the U.S. Supreme Court’s June ruling in Arizona v. Inter Tribal Council of Arizona, Inc., which invalidated Arizona’s law requiring documentary proof of citizenship to register to vote, as it applied to the federal registration form. The ruling stated the law violated the 1993 National Voter Registration Act, a statute that was well within Congress’s broad power to regulate federal elections. Kansas and Arizona now seek to force the EAC to change the federal form to allow those states to require proof of citizenship as part of the voter registration process.

While the case is in process, Kansas and Arizona are moving ahead with a two-tiered voting system with two sets of voter registration lists for state and federal elections. Under these rules, voters who register using state forms are eligible to vote for the complete ballot — including ballot initiatives, and state and local candidates at every level. But voters who register using the federal form can only receive ballots for federal candidates.


Hmmm, funny how none of this made it into the reporting by Howard Fischer on this lawsuit — mostly reflecting the perspective of Arizona Secretary of State Ken "Birther" Bennett. Groups trying to kybosh proof of citizenship voting requirements.


Press release from the Lawyers Committee for Civil Rights Under Law: Groups Oppose Arizona and Kansas Laws Regarding Proof-of-Citizenship for Voter Registration.

Press release from the ACLU: ACLU Challenges Kansas' Two-Tiered Voter Registration System.


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