Kobach, Justice Dept. prep for Denver showdown over voting rights

08/16/2014 7:00 AM

08/16/2014 2:38 PM

Kansas Secretary of State Kris Kobach and lawyers for the U.S. Justice Department will soon face one another in a Denver appeals court, arguing a landmark federal case over proof of citizenship and voting rights.

While the case will directly affect only a couple of hundred Kansas voters – those who registered using a federal form instead of the far more common state form – it has broad national implications and has attracted input from interests ranging from the state of Alabama to U.S. House Minority Leader Nancy Pelosi.

It’s already affected Wichita in a major way. If federally registered voters weren’t disqualified from state and local elections as they are now, Wichitans would probably be voting this November on an initiative to decriminalize marijuana.

The 10th Circuit Court of Appeals is scheduled to hear oral arguments Aug. 25 in the case, pitting Kansas and Arizona against the federal Election Assistance Commission, a panel empowered by Congress to develop and oversee the federal registration form. The issue at hand is whether the two states can force the federal agency to comply with state laws requiring documents proving citizenship to register to vote.

The states’ forms require that proof, almost always in the form of a birth certificate or passport.

The federal registration form doesn’t require paper proof of citizenship, but it does require registrants to sign a sworn statement of citizenship under penalty of perjury.

Kobach’s side argues the documents are needed to prevent voting fraud.

The commission and its supporters argue that it’s an unacceptable hurdle to voting and violates the National Voter Registration Act, better known as the “motor voter” law.

Kobach won at the trial level when U.S. District Judge Eric Melgren ruled the Election Assistance Commission had to honor the states’ wishes and include their documental proof-of-citizenship requirement in the state-specific instructions that go with the federal registration form.

The EAC and its supporters appealed and got a temporary hold on Melgren’s ruling while the Denver-based 10th Circuit Court of Appeals considers the issue.

Kobach said last week that the states will appeal to the Supreme Court if they lose in Denver.

Congress’ authority

A three-judge panel of the Circuit Court will hear the oral arguments.

Kobach will be giving the arguments on behalf of Kansas, Arizona and other states that have the joined the case, Alabama and Georgia. Several conservative legal organizations have also joined on Kobach’s side.

Bonnie Robin-Vergeer, an attorney from the Department of Justice, will represent the federal government’s case and possibly share time with lawyers representing the numerous voting-rights groups that have intervened, said Jonathan Brater, a lawyer with the Brennan Center for Justice at the New York University School of Law.

Brater is one of a team of lawyers representing the League of Women Voters in the case. He said the key question – and the one that has generated all the national attention – is whether Congress has the authority to set voting procedures within the states.

He said their side will lean heavily on the precedent of Arizona v. Inter Tribal Council, a 2013 case in which the Supreme Court blocked Arizona’s proof-of-citizenship law, saying it conflicted with a provision in the motor voter law that states “accept and use” the federal form to register voters.

He said the tribal case appeared to have settled the issue, but “here we are a year later, with states trying to undermine Congress’ power to protect the vote.”

A brief filed on behalf of the league and other voting-rights interest groups asked: Where does it end if the states win?

“States could pile endless document requirements on the federal form if they claimed them ‘necessary’ to enforce eligibility requirements: an original birth certificate to assess age; a title deed to property to prove residency; a doctor’s certificate to prove mental capacity; an FBI background check to demonstrate lack of criminal convictions,” the brief said. “That is an absurd result.”

Pelosi and her Democratic caucus leaders struck a similar note in their brief supporting the Election Assistance Commission. That brief cites “Congress’ broad and long-recognized authority to regulate federal elections and to protect the right to vote.”

The Pelosi brief says that for more than 100 years “Congress’ exercise of its constitutional authority has played a pivotal role in expanding the opportunity to vote and removing unnecessary hurdles to voting.”

Brater said documental proof of citizenship falls hard on groups like the League of Women Voters, which conduct registration drives at parks, shopping centers and farmers markets around the country.

“People don’t bring their birth certificate or passport with them when they go out to buy vegetables,” he said.

Kobach sees the decision in the Inter Tribal Council case differently. He points to language in the ruling that said states can challenge the decisions of the EAC on what is “necessary” to ensure voting qualifications.

“I think probably the case will turn on what the Supreme Court meant in Arizona v. Inter Tribal Council,” he said. Much of the states’ case “will be about what the (justices) intended when they left that opening that suggested a state may bring this very lawsuit.”

False registrations

Like the EAC, Kobach has his share of prominent supporters and friends of the court.

In its brief supporting Kobach and the states, the American Unity Legal Defense Fund included copies of several false registrations, including one by a New Mexico Republican who registered his Labrador retriever as a Democrat. Buddy was one of two dogs registered to vote in that county, the brief said.

“At least those dogs were alive when registered; other dogs in other states received voter registration applications when they reached their 18th birthdays, even if they were not alive,” the brief continued.

It also showed examples of noncitizens who registered and cast ballots in elections.

“This evidence of non-citizen voter participation does not necessarily mean there is criminal intent on the part of the aliens,” the brief said. “But it still drives honest citizens out of the democratic process and breeds distrust of our government.”

Opponents of paper-based proof of citizenship acknowledge that there are many instances of improper registration.

But they say most of that stems from paid party workers, both Democrat and Republican, who file cards for nonexistent voters because their pay is based on how many people they register. They say it seldom results in actual votes being cast and that document requirements are a solution to a non-problem.

What decisions could mean

Kobach said the state is hoping for a decision in the case before the Nov. 4 general election.

If that decision goes in Kobach’s favor, state law will rule and voters who sign up on federal forms will have to meet the same proof-of-citizenship requirements as voters who use the state form.

If it goes in favor of the EAC, Kobach will continue the current two-tier system in which voters registered on federal forms can vote, but only in federal races for members of Congress and the president.

But a victory by the EAC could revive a lawsuit that’s more or less on hold in Topeka, where the ACLU challenged the two-tier system as unconstitutional because it treats different classes of voters differently.

The new system with federal-only voters has already had a profound effect in Wichita. On a recent petition to decriminalize marijuana, the signatures of federal-only voters were disqualified en masse because under Kobach’s guidance, they have not met the qualifications to vote in a city election.

Petition organizers registered more than 100 voters using federal forms. Their petition is 35 signatures short of the number they needed to force the City Council to put the matter on the ballot, and they’ve filed a complaint with the county counsel’s office demanding that the federally registered voters be included.

If the EAC case is decided in the EAC’s favor, and the ACLU case is won by the ACLU, it would build a work-around that would essentially gut the document proof-of-citizenship requirement in state law.

Voters would be able to sign up without providing their documents using the federal form, and would not be excluded from voting in state or local elections.

Reach Dion Lefler at 316-268-6527 or dlefler@wichitaeagle.com.

Supporters on both sides

The case of Kobach v. United States Election Assistance Commission has broad implications across the country. The following groups have either formally intervened in the case or filed friend-of-the-court briefs in favor of one side or the other:

Supporting Kobach and documental proof-of-citizenship

States of Kansas, Arizona, Georgia, Alabama; American Unity Legal Defense Fund; Judicial Watch Allied Education Foundation; Eagle Forum Education and Legal Defense Fund.

Supporting the Election Assistance Commission and citizenship proof by sworn statement

League of Women Voters of Kansas, Arizona and the United States; House Minority Leader Nancy Pelosi and Democratic House leadership; Rock the Vote; Voto Latino; Protecting Arizona’s Family Coalition; Nonprofit VOTE; Chicanos por La Causa; Common Cause; Southwest Voter Registration Project; Valle Del Sol; Project Vote; Inter Tribal Council of Arizona; Arizona Advocacy Network; League of United Latin American Citizens Arizona.

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