Federal appeals court questions Kansas’ proof-of-citizenship rules

08/25/2014 2:20 PM

08/25/2014 7:47 PM

A federal appeals court on Monday expressed skepticism over Kansas Secretary of State Kris Kobach’s contention that a federal commission must make voters who register using a federal form provide proof-of-citizenship documents required under state law.

Kansas and Arizona are trying to force the federal government to add their requirements to federal voter registration forms mandated by the National Voter Registration Act, also known as the motor voter law.

Arguing the case before the 10th Circuit Court of Appeals, Kobach said the Election Assistance Commission is required to add the state-specific instructions to the federal form.

But Judge Jerome A. Holmes interrupted: “Oh whoa whoa whoa, there’s a big jump there.”

Holmes said when the U.S. Supreme Court decided a similar case from Arizona last year, it said states could “request” that the commission add state-specific requirements to the federal form.

The Supreme Court overturned Arizona’s proof-of-citizenship law in that case, Arizona vs. Inter Tribal Council. However, Kobach contends that some of the language used by the court invited further litigation.

On Monday, he argued that the federal commission – particularly when acting without commissioners – has only a “ministerial” duty to accept state laws and apply them to the federal forms.

Judge Gregory A. Phillips asked Kobach if the commission didn’t have the authority to deny a state’s request as well as granting one, “Why would we have that word ‘request’ (in the Inter Tribal decision)?”

While states have the authority to set voter qualifications, the federal commission is only allowed to place on the forms requirements that are “necessary” to establish that voters meet the qualifications.

The judges indicated they see citizenship as the qualification to vote – and the case hinges on whether document proof is necessary.

“Necessary as defined by who?” Holmes asked Kobach. “Who is deciding what’s necessary?”

Holmes implied that the commission has been granted authority by Congress to decide what goes on the federal form, while acknowledging that states could challenge commission decisions they deem to be arbitrary or capricious.

‘Suspended’ voters

Kansas requires documents to prove citizenship, which means a birth certificate or passport in almost all cases.

The federal form accepts a sworn statement under penalty of perjury to establish citizenship.

The case has broad national implications because several states have requirements similar to Kansas and more are expected to consider requiring documents to prove citizenship. Kobach and those who support his side of the issue say such proof is needed to prevent voter fraud and non-citizens casting ballots in U.S. elections.

Voting-rights groups that have joined the case say voter fraud is not a significant problem and that the real intent is to create a barrier to voting for those who don’t have immediate access to birth certificates and passports, especially the poor, elderly people and minorities.

Kansas now operates under a two-tier system in which voters who register with the federal form are excluded from state and local elections and allowed only to vote on federal candidates for Congress and president. Voters who use the more common state form – and provide the documents proving citizenship – can vote in all elections.

That has created a situation in which about 19,500 prospective voters have filed a state registration form but are in “suspense” and can’t vote in any election until they provide their documents.

Kobach’s office checks those registrations against state birth records and grants voting privileges when the records match. But prospective registrants born outside Kansas must track down and pay for copies of the required documents on their own.

If Kobach wins the case, all voter registration applicants would have to provide their papers to prove citizenship to vote in any election in Kansas – federal, state or local.

If the commission wins, that could breathe new life into a related case that’s on hold in Topeka. That case challenges the two-tier voting system Kobach created as unconstitutional because it treats voters differently depending on which form they use to register.

If both cases were to go against Kobach, it would create a work-around that would allow voters to use the federal form to register and vote in all elections, without complying with Kansas’ proof-of-citizenship law.

Questions of authority

The judges pressed hard on the question of whether the staff of the commission, acting without a quorum of commissioners, even has the authority to make the decision on Kansas’ request in the first place.

Judge Carlos F. Lucero, who presided over the three-judge panel, grilled Bonnie Robin-Vergeer, the Justice Department lawyer representing the commission, on whether a commission without commissioners could render a final decision on what would be a major change for voters in Kansas and Arizona.

The EAC has no commissioners right now because a gridlocked Senate hasn’t acted to confirm any of President Obama’s nominees for it.

The decision against adding Kansas- and Arizona-specific requirements to the federal registration form was made by the agency’s acting executive director, Alice Miller, who was ordered to make a decision by U.S. District Judge Eric Melgren of Wichita, who heard the case at the trial level.

Lucero likened the commission staff making decisions on major matters without a commission to the old adage about the tail wagging the dog, adding that it appeared as if “even after the dog is dead, the tail can still keep wagging it.”

Holmes said he didn’t see where Melgren got the idea that he could order a federal agency to act when it didn’t have the members needed to act.

Robin-Vergeer defended Miller’s decision to act, saying the commission, when it did have commissioners, had delegated the authority for the staff to “maintain the (registration) form consistent with the policies of the commission.”

She said that authority remained with the executive director even after all the commissioners’ terms had expired.

However, Lucero questioned whether that creates a due-process issue because there is no actual commission where Kansas and Arizona could have appealed the decision against them.

Judges seemed to entertain the idea of sending the case back to Melgren.

That would leave in place Kansas’ current two-tier voting system in place.

A ruling that the commission’s staff doesn’t have authority to decide Kansas’ request would basically take the case back to square one, where the state can’t get a definitive decision on its request until commissioners are appointed, Kobach said.

“It’s a catch-22: Here’s the process, but the process is impossible,” he said.

Several times during the oral arguments, judges questioned whether the decision rests with the courts or the political process.

Kobach said after the hearing that if the commission can’t make decisions, it deprives states of their rights, which makes it a constitutional issue.

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

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