Update on status of Arizona’s proof-of-citizenship voter registration case

I attended a recent presentation by Pima County Recorder F.Ann Rodriguez and the staff of the Pima County Elections Division discussing how they are addressing changes in Arizona law for the upcoming election.

I learned that Arizona Secretary of State Ken “Birther” Bennett is going forward with his Tenther “states rights” plan to bifurcate ballots between those voters who registered to vote using the state of Arizona’s voter registration form which requires proof of citizenship, and those who registered to vote using the federal National Voter Registration form which does not require the state proof of citizenship. Such a system would limit those who registered to vote using the federal form to only being allowed to vote for members of Congress this year — you would not be allowed to vote for any other office.

You may recall that the federal District Court for Kansas ordered back in March that the U.S. Elections Assistance Commission (EAC) immediately modify the National Voter Registration form to add special instructions for Arizona and Kansas residents about those states’ proof-of-citizenship requirements.

The EAC and the several voting rights intervenors in the case, including the League of Women Voters of the United States, Project Vote Inc., Inter Tribal Council of Arizona, Common Cause, Arizona Advocacy Network, League of United Latin American Citizens Arizona, Southwest Voter Registration Education Project, Chicanos Por La Causa and others, appealed the decision to the Tenth Circuit Court of Appeals.

In addition, the EAC and others moved for a stay of the District Court order pending appeal. Feds seek stay of order in voter citizenship case:

Federal election officials have asked a judge to temporarily suspend his own order that they help Kansas and Arizona enforce state laws requiring voters to prove their U.S. citizenship, arguing that the case “implicates the fundamental right to register to vote.”

The court filing [March 31] comes in response to U.S. District Judge Eric Melgren’s decision on March 19 requiring the U.S. Election Assistance Commission to immediately modify a national voter registration form to add special instructions for Arizona and Kansas residents about those states’ proof-of-citizenship requirements.

More than a dozen voting rights groups, which had previously intervened in the litigation, made a similar joint request for a stay last week. Project Vote Inc. filed its own motion Tuesday seeking the same thing.

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The election commission argued that it has a substantial case that is likely to succeed on appeal because the district court’s order conflicts with a U.S. Supreme Court decision last year and does not give appropriate deference to the agency’s fact-findings when it rejected the state’s requests.

“In any event, this case — which implicates the fundamental right to register to vote — presents novel legal questions of undoubted seriousness, complexity, and weight, thereby making preservation of the status quo appropriate pending further review,” the government wrote in its filing.

Following the court’s order, the EAC said it began adding the requested state-specific instructions to the federal form. An affidavit from its acting executive director, Alice Miller, filed with the stay request noted the federal form is maintained in seven languages and anticipated that the modified form would be ready to post on its website by April 11.

[Update: The EAC subsequently filed a Notice regarding Federal Form (ECF No. 178) on April 11, 2014 informing the Court that the EAC would not change the National Voter Registration form online until it had exhausted all possibilities regarding a stay. This is the subject of a separate Plaintiffs’ Motion to Compel Compliance with Court Order (.pdf)]

The case has already been appealed by the voting rights groups to the 10th U.S. Circuit Court of Appeals. The Justice Department, which represents the agency, wrote that it believes the court’s order last month is in error and it is evaluating whether to appeal.

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If the court grants the stay, Kansas would implement a dual voting procedure, Kobach said. Such a system would limit Kansas residents who register with the federal form to voting only in presidential, U.S. Senate and congressional races.

Ken “Birther” Bennett is taking the same position, implementing a dual voting procedure. It would be in contravention of a stay order from the Court, should it be granted. Stay orders are meant to preserve the status quo. Imposing a dual voting procedure is not the status quo — it is not how elections are conducted in Arizona. This will only lead to more litigation as the parties will seek an order from the court prohibiting the Secretary of State from implementing the dual voting procedure.

Kansas and Arizona were granted more time to respond to the request by the EAC for a stay of the court ruling requiring them to enforce state laws requiring new voters to document their U.S. citizenship. U.S. District Court Judge Eric Melgren  gave the states until [April 18] to file their arguments against his ruling.

The motions remain pending before the Court, and no ruling has been entered.

In the meantime, I would advise anyone registering voters not to use the federal National Voter Registration form because of the shenanigans planned by our Secretary of State for bifurcated ballots, and the uncertainty of the outcome of litigation.

I strongly encourage voting rights advocacy organizations to assist those who have registered using the federal National Voter Registration form to register again using the state voter registration form before the July 28, 2014 voter registration cut-off date for the primary election.

If the voter does not have a birth certificate or other acceptable form of proof of citizenship, voting rights advocacy organizations should be working to assist those voters with obtaining the necessary documents. This will involve expense in obtaining records.