December 13, 2013

Judge orders feds to act on states’ request on proof-of-citizenship voter laws

A federal judge in Wichita has ordered a federal agency to act on a request by Kansas and Arizona to modify a national voter-registration form to reflect the states’ voter proof-of-citizenship laws.

A federal judge in Wichita has ordered a federal agency to act on a request by Kansas and Arizona to modify a national voter-registration form to reflect the states’ voter proof-of-citizenship laws.

U.S. District Judge Eric Melgren said Friday that the U.S. Election Assistance Commission must make a decision by Jan. 17, adding that the matter had been unreasonably delayed and could begin to interfere with Kansas’ election cycle. Statewide elections are scheduled for next fall.

Melgren told a courtroom full of lawyers who had been arguing the issue all morning that he would retain jurisdiction over the case, anticipating that no matter what the EAC decides, “someone in this room won’t like it.”

Kansas Secretary of State Kris Kobach and Arizona Secretary of State Ken Bennett have sued the commission for refusing to add their states’ proof-of-citizenship requirements to the instruction sheets that accompany the federal voter form. That form is not widely distributed in Kansas but can be downloaded and copied from the Internet.

The states had asked Melgren for a preliminary injunction to force the commission to modify the form. But Melgren said he decided to send the matter back to the EAC to allow the administrative process to be completed.

The U.S. Supreme Court this summer invalidated Arizona’s proof-of-citizenship law, ruling that it conflicted with the federal Motor Voter Act, which was designed to make registration more consistent from state to state and to provide voter registration at driver’s license bureaus.

Kobach wrote a similar law that was approved by the Legislature in 2011. The citizenship requirement for new voters went into effect this year.

He has said his law is sufficiently different from Arizona’s law that it won’t be affected by the Supreme Court decision. He said it was needed to prevent fraudulent voting in Kansas; critics have contended it was intended to suppress votes.

So far this year in Kansas, more than 17,000 people who have started the voter registration process have not yet provided proof of citizenship such as a birth certificate or passport. Their registrations are incomplete and considered “in suspense“ until they do so.

Kobach, who represented both states at Friday’s hearing, said in court that before the new law passed, there were 20 cases in Kansas of voters who signed an oath of citizenship but who weren’t citizens.

He said he would be forced to implement a “bifurcated” registration system as a fallback in case he loses the court challenge. That system would allow some voters to vote in all elections while others could vote only in federal races for Congress and president.

Kobach said he didn’t want to implement such a system because it would be expensive and confusing. But he said he would have no choice if the state’s request to change the federal form isn’t granted.

After the hearing, he said he was pleased that Melgren was requiring the EAC to take action. Kansas made its request for the form change 16 months ago, he said.

“That’s a lifetime in the election cycle,” Kobach said.

Kansas needs to act soon so that computer software can be prepared and county election workers can be trained in time for the August primaries and the November general election, he said.

Melgren said he had reservations about the EAC’s ability to make a decision on the states’ requests. The commission has no commissioners at the moment, although two nominations are pending. That raised a question that was debated in court about whether the commission’s executive director and staff have the authority to take action.

Bradley Heard, an U.S. Justice Department attorney representing the EAC, said the director and staff could work within the framework of existing federal law and follow EAC policy to make a decision.

Also speaking in court were attorneys for parties that have intervened in the case, including Project Vote, the League of Women Voters, and Valle Del Sol, an Arizona organization that fought that state’s proof-of-citizenship law.

They said the matter should be sent back to the EAC to make a decision and to start building a record of evidence in the case before the court makes a determination.

“We don’t believe the matter belongs here at this moment,” Nina Perales, attorney for Valle Del Sol, told Melgren.

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