Update on Arizona’s proof-of-citizenship voter registration form 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).

Last month the EAC filed with the Court a detailed 46-page EAC Final Decision on Proof of Citizenship Requests (.pdf). In its decision, the EAC found that added documentation results in an overall decrease in registration of eligible citizens — undermining the core purpose of the National Voter Registration Act. The EAC essentially told Arizona and Kansas to "go pound sand."

The AP reports this week Kansas, Arizona rekindling lawsuit over proof-of-citizenship voter registration:

Kansas and Arizona have rekindled a lawsuit seeking to force the U.S. Election Assistance Commission to require residents to show proof-of-citizenship when registering to vote, arguing that a recent agency decision to deny the requests was unlawful.

In a filing late Friday in a case with broad implications for voting rights, the two states asked U.S. District Judge Eric Melgren to order federal officials to include state-specific requirements in federal voter registration forms.

The latest legal move was not unexpected. Melgren had previously scheduled a Feb. 11-12 hearing in the wake of a decision last month by the election commission that rejected the states’ requests, finding that stricter proof-of-citizenship rules hinder eligible citizens from voting in federal elections.

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Kobach contends in the latest court filing that proof-of-citizenship is not any less of a legal requirement simply because the agency does not think it is necessary. He argued the EAC is legally required to include the Kansas and Arizona instructions on the federal voter registration form.

“The EAC’s determination to the contrary was arbitrary, capricious, an abuse of discretion, and not in accordance with law, and should therefore be set aside,” the states’ filing said.

Kobach also challenged the authority of EAC’s acting executive director, Alice Miller, to issue the decision because at the time the EAC had no commissioners. The commission was waiting for Congress to approve some presidential appointments.

The EAC previously filed a "Motion to limit court's review to the agency record, to limit the February 11-12, 2014 hearing to oral argument, and to hold a status conference." Scribd document.

Ballot Access News reports that the EAC motion was granted by the Court. Kansas and Arizona Lose on Procedure, in Case Over Federal Voter Registration Form:

On February 5, U.S. District Court Judge Eric Melgren signed an order restricting the scope of the Kansas-Arizona challenge to the Election Assistance Commission’s decision not to allow those two states to amend the federal voter registration postcard form. The two states wanted a trial to submit evidence that the federal form doesn’t offer enough protection against aliens registering to vote.

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The Election Assistance Commission had already held a hearing last year at which both sides presented evidence. The EAC record on this matter consists of 1,912 pages. After the EAC’s hearing, the EAC issued a 46-page determination [above] that there is no need to amend the form.

The judge ruled that, therefore, there is no need for a trial on this issue in his court. Instead, the District Court will simply rule on whether the EAC has the authority to make the decision it did.

Kansas and Arizona will now probably argue that the EAC’s determination was “arbitrary, capricious, or an abuse of discretion”, and the two states will also probably argue that the EAC is required to honor the request of the states. The two states may also argue that the EAC had no authority to act because, although it has a full-time professional staff, it has no sitting commissioners.

Which is what the states did as reported by the AP, above.

So the next step in this case is oral arguments scheduled for February 11-12, 2014 in the U.S. District Court of Kansas. Maybe the Arizona Republic and News 12 should spend a few bucks to send a reporter to cover this hearing.

The case is Kobach v U.S. Election Assistance Commission, 5:13cv-4095.

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