Kansas Secretary of State Kris Kobach is asking the U.S. Supreme Court to overturn an appeals court decision and restore a state law he wrote requiring proof-of-citizenship documents to register to vote.
Kobach wants the Supreme Court to undo the November decision by the Denver-based 10th Circuit Court of Appeal, in a case pitting Kansas and Arizona against the federal Election Assistance Commission and a bevy of voting rights groups.
The appeals court ruled that the states could not require document citizenship proof from prospective voters who register using a federal form that doesn’t demand it – and that the commission doesn’t have to alter the federal registration form to comply with the states’ demands.
Kobach argues Supreme Court guidance is needed because the case is of paramount national importance.
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“It’s a really profoundly important case,” Kobach said. “The founding fathers were emphatic that the states get to decide who is a qualified voter and who is not. It was a critical point in the Constitution that the federal government would have to follow the states on this matter.
“In other words, the qualifications for voting for a member of Congress in Kansas would have to be the same as those for voting for a member of the Kansas Legislature and it was the states who would set the rules and Congress would follow, not vice versa. What this federal agency has done is turn the founding fathers’ notion on its head.”
Election Assistance Commission officials could not be reached late Thursday.
Dolores Furtado, president of the Kansas chapter of the League of Women Voters, said the league will continue its intervention in the case on the federal commission’s side.
She said she hasn’t yet talked with the group’s lawyers about Kobach’s appeal, but they will very likely file a rebuttal to it. Both the state and national league organizations have intervened in the case, represented by the lawyers from the Brennan Center for Justice at New York University.
Other voting-rights groups that have joined on the commission’s side include Common Cause, Project Vote, Inter Tribal Council of Arizona and others.
They argue that the proof-of-citizenship requirement represents an unacceptable hurdle to voting and is therefore unconstitutional. They also say the requirement is especially difficult for low-income, elderly and minority voters to meet.
The Kansas requirement for proof of citizenship is often confused with, but separate from the state’s requirement for photo ID to vote at the polls.
While a driver’s license fulfills the photo ID requirement, proof of citizenship to register to vote most often requires either a birth certificate, passport, or other documents for special circumstances such as tribal and foreign-born citizens.
The federal form doesn’t require any documents, but instead requires prospective voters to attest to their citizenship by signing a sworn statement under penalty of perjury.
Since the 10th Circuit ruled against Kobach, Kansas has operated under a two-tier system for state and federal voters.
Voters who use the state registration form and provide citizenship proof can vote in all elections. But those who fill out a state form and don’t provide the proof have their voting privilege suspended until they produce it.
At present, about 25,000 prospective voters are on the suspense list.
Voters who register with the federal form and don’t provide citizenship proof are excluded from state and local elections, but can vote for federal candidates in congressional and presidential elections.
The change has already affected Wichita’s elections.
Signatures of federal-form voters were disallowed on the petitions to put a marijuana-reform effort on the city election ballot. Federal voters were also excluded from the recent city primary and won’t be allowed to vote in the April 7 election for mayor, City Council and school boards.
The 10th Circuit judges said Kansas and Arizona have other ways to check voters’ citizenship that are less burdensome for voters than requiring them to provide their birth records.
The Election Assistance Commission’s executive director “discussed in significant detail no fewer than five alternatives to requiring documentary evidence of citizenship that states can use to ensure that noncitizens do not register using the Federal Form,” the court ruling said. “Kobach and (Arizona Secretary of State Ken) Bennett do not dispute that these means exist, and merely contend that they are overly onerous.”
The case has been complicated by the fact that the federal commission has no actual members because of Senate gridlock over President Obama’s nominees.
However, the appeals court ruled that the executive director of the commission can exercise authority in the absence of a quorum of commissioners.
Kobach’s filing sets the clock for a series of written rebuttals from both sides, followed by a decision by the Supreme Court whether it will take up the case.
Kobach said he expects that decision sometime this summer, with oral arguments in the fall if the court decides to take the case.
Reach Dion Lefler at 316-268-6527 or email@example.com.