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Jonathan Brater: Don’t erode protections for the right to vote

  • Published Friday, Dec. 13, 2013, at 12 a.m.

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Registering to vote is a vital step toward civic participation. Unfortunately, some want to make it more complicated, and they are willing to go to court to do it.

The League of Women Voters, one of the longest-standing voter-registration groups in Kansas, thinks the United States should be making it easier, not harder, for citizens to participate in our democracy.

This pathway actually starts in Arizona. For years, the state has been trying to require people registering to vote to “show their papers” to prove citizenship. Last summer the U.S. Supreme Court ruled that when it comes to federal elections, Arizona must allow citizens to register using a simple application card that does not require extra documents. Now, Arizona wants a do-over, and Kansas Secretary of State Kris Kobach, who helped craft the Arizona law, is joining it.

Arizona and Kansas want to force the Election Assistance Commission, the agency that maintains the national voter-registration form, to change that form so citizens can’t register to vote without showing a birth certificate, a passport or a limited set of other government documents. But this show-your-papers requirement would violate federal law, which is designed to make it easier for eligible Americans to participate by creating a uniform national form and removing unnecessary barriers to registration.

The national application form already requires registrants to check a box and sign an affidavit under penalty of perjury affirming they are citizens, just like a witness in a court case. Federal law does not allow states to impose additional procedural hurdles. For this reason, the commission has already twice rejected Arizona’s demand.

Arizona put a rule in place in 2005 that applicants must produce a document such as a birth certificate or a passport, which many eligible citizens do not have. In fact, a court found that up to 30,000 eligible Arizonans were unable to register in the immediate aftermath of the law. Kansas put into effect a similar law this year, and it is already wreaking havoc on election officials, volunteers and would-be voters. It is particularly harmful to women, whose married names may not match those on their birth certificates.

Because of the documentation requirement, efforts to register voters have been much less successful. Simply put, most people do not walk around carrying their birth certificate or passport, and even if they did, the League of Women Voters doesn’t carry around machines to copy those documents. This means the group has little ability to register voters at schools, festivals and other community events as usual.

The new rule has already harmed many citizens – thousands of voters across the state currently have their registrations placed on a suspense list because they did not have these documents when they tried to register.

As of now, the show-your-papers rule only applies to the state registration form, but the secretary of state is pushing to impose the requirement on the federal form as well. This would make a bad situation worse, and the League of Women Voters is getting involved in the lawsuit to stop it from happening.

As the Supreme Court recognized the last time it considered this issue, it is important to have strong federal protections for the right to vote, and states should not be allowed to erode them.

Jonathan Brater is counsel at New York University School of Law’s Brennan Center for Justice, which represents the League of Women Voters U.S. and its Kansas and Arizona affiliates in the case.

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