Kansas, Arizona prevail in voter citizenship suit

07/12/2014 9:15 AM

08/08/2014 10:22 AM

A judge in Wichita has ordered a federal commission to enforce Kansas and Arizona laws requiring documents such as a birth certificate proving citizenship for new voters.

U.S. District Judge Eric Melgren ordered the Election Assistance Commission to immediately add Kansas- and Arizona-specific instructions to the federal voter registration form.

Those instructions will say that new registrants will have to provide documents proving citizenship before they are allowed to vote, as required by state law.

For most people, that means either a birth certificate or passport. Other forms of proof are accepted in special cases, including for veterans, naturalized citizens, Americans born overseas and members of federally recognized tribes.

The requirement is separate from the companion provision of state law that requires voters to show their driver’s license or other state-issued photo ID when they vote at the polls.

About 15,000 Kansas registrants have their voting privileges suspended because of failure to provide proof of their citizenship.

The court decision is a significant victory for Kansas Secretary of State Kris Kobach, who shepherded the state’s proof-of-citizenship law through the Legislature and was tapped by Attorney General Derek Schmidt to defend the law in court. Arizona became a co-plaintiff in the Wichita case after a Supreme Court ruling went against its proof-of-citizenship law last year.

Kobach hailed Melgren’s decision but acknowledged it might not be the last word.

“It’s a very well-written decision ordering the commission to take action immediately,” Kobach said. “The only unknown is what the Obama Justice Department decides to do next.”

The Justice Department has appealed previous proof-of-citizenship cases all the way to the Supreme Court, “so we’ll see what they want to do,” Kobach said.

Kobach said the decision negates the need for his fall-back plan, a two-tiered system of voting in which voters who registered using a state form would be allowed to vote in all elections – and those who used a federal form could vote only in congressional and presidential races.

Nearly all Kansas voters use a state-produced form to register that includes the requirement for proof of citizenship. The federal registration form requires only that prospective voters sign a statement declaring they are citizens.

Kobach said he soon will ask Melgren to dismiss as moot a case brought by the American Civil Liberties Union challenging the two-tier system.

Julie Eberstein, a staff attorney with the ACLU’s Voting Rights Project, said the organization will continue to press its case on behalf of its plaintiffs, who registered using the federal form between the time the state began requiring proof of citizenship and Melgren’s ruling.

Kobach, however, said he will use “extraordinary measures” to verify the citizenship of those who used a federal form during that time period.

He said the affected group is only about 65 people. With a group that small, his office should be able to confirm their citizenship through federal authorities and activate their registrations, he said.

Former State Sen. Jean Schodorf, who plans to run against Kobach in the November election, said she was appalled by Melgren’s decision.

She said it would continue and very probably grow the list of suspended voters.

“It’s continuing the supression of voting, or, as I call it, the war on voting,” Schodorf said. “I really don’t think Kansas citizens want that. We’ve got to make it easier and seamless for Kansans to register to vote.”

Melgren, a former U.S. attorney for Kansas during the George W. Bush Administration, did not address the constitutionality of the proof-of-citizenship requirement itself.

His ruling primarily found that the Election Assistance Commission doesn’t have the authority to reject Kansas’ and Arizona’s request that their proof-of-citizenship requirements be added to the federal voting registration form.

Melgren said the U.S. Constitution gives states the power to set voter qualifications.

He ordered the commission to add the language requiring proof of citizenship as requested by Arizona and Kansas to the state-specific instructions on the federal voter registration form, effective immediately.

Eberstein and Schodorf said they expect the Election Assistance Commission will appeal Melgren’s decision.

Some Kansas voting-rights groups had planned to switch to the federal forms for registration drives because few people routinely carry their birth certificate or passport with them.

The League of Women Voters and others have said requiring the proof of citizenship essentially makes it impossible to register voters in the kind of sidewalk or shopping-center drives that were once common in Kansas.

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