A judge strongly questioned Tuesday whether a federal commission has the authority to prevent Kansas and Arizona from demanding proof-of-citizenship documents from people trying to register to vote using federal forms.
Judge Eric Melgren repeatedly pressed Department of Justice lawyer Bradley Heard to explain how a Supreme Court decision last year on Arizona's proof-of-citizenship law allows the federal Election Assistance Commission to reject requests from Arizona and Kansas to add state-law requirements to the instructions for filling out the voting form.
"The single pivotal question in this case is who gets to decide … what's necessary" to establish citizenship for voting, Melgren said.
Heard said that decision lies with the EAC under the federal National Voter Registration Act, also known as the motor-voter law. He said the law empowers the commission to decide what questions and proofs are necessary to include in the federal registration form.
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While the law doesn't explicitly state the EAC can overrule states on proof of citizenship, Heard said the legislative history shows that requiring document proof was considered and rejected by Congress.
"I've read the legislative history, and I'm not very impressed by it," Melgren responded.
Kansas Secretary of State Kris Kobach represented both Kansas and Arizona in the hearing. He's seeking a ruling that would require all new registrants in those states to provide document proof of citizenship regardless of whether they use a state or federal form.
Melgren pressed Kobach at one point, on whether the commission has to automatically add anything to the federal form that a state legislature and governor might approve.
Melgren gave the hypothetical example of Kansas passing a law denying the right to vote to people of Swedish descent, and asked Kobach whether the EAC would have to add that to the federal form.
"Yes, yeah, they would," Kobach responded.
He added that such a law would be unconstitutional and sure to be struck down, but a court – not the EAC – should make that decision.
In broad strokes, last year's Supreme Court ruling found that Arizona's voter registration law conflicted with the federal motor-voter law. The problem was Arizona didn't accept the federal form required by the act if the prospective voter didn't provide proof of citizenship required by Arizona.
Kobach argued that the Supreme Court left the states an avenue of requesting that the Election Assistance Commission add state-specific instructions for documental citizenship proof to the federal form.
Earlier in the case, Melgren ordered the EAC staff to consider the states' requests, which it denied. The EAC at present has no commissioners because of Senate gridlock on Obama administration nominees.
Kobach argued that the commission staff could legally have approved his request and indeed was required to in exercising its "nondiscretional ministerial duty" to administer the federal form. He argued that rejecting the request was a "policy decision" exceeding the commission's or its staff's authority.
The federal form at issue is different from the state form that nearly all Kansas voters use to register.
However some voting-rights advocates have said they will start using the federal form in registration drives because of the difficulties in obtaining proof-of-citizenship – primarily a birth certificate or passport – because few people keep those documents with them as part of their daily routine. The federal form establishes citizenship through an affidavit sworn under penalty of perjury.
Kobach has plans to establish two tiers of registration if he loses the case. Under that fallback plan, voters using the state registration form would be entitled to vote in all elections, while voters using the federal form would only be allowed to vote on federal candidates for president and members of Congress.
At present, approximately 12,000 Kansas registrants have had their voting privileges suspended for failure to provide proof of citizenship documents.