A federal appeals court on Thursday seemed likely to side with voting rights groups seeking to block Kansas, Georgia and Alabama from requiring residents to prove they are U.S. citizens when registering to vote using a national form.
Judges hearing arguments in the case considered whether to overturn a decision by a U.S. election official who changed the form’s proof-of-citizenship requirements at the behest of the three states, without public notice.
The dispute is part of a slew of challenges that civil rights groups have brought against various state voting laws they claim are designed to dampen turnout among minority groups that tend to favor Democrats. Those challenges have already succeeded in stopping voter ID requirements in North Carolina and Texas and restrictions elsewhere.
In the citizenship case, a coalition including the League of Women Voters and civil rights groups say the requirement to show proof undermines efforts to register new voters and deprives eligible voters of the right to vote in federal elections.
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A federal judge in July refused to block the requirement while the case is being decided.
Two of the three judges hearing the case at the U.S. Court of Appeals for the District of Columbia Circuit suggested the citizenship requirement can pose a tough hurdle for many eligible voters.
“The change clearly adds to the tasks to be performed to get someone registered,” said Judge Stephen Williams. He suggested opponents had shown that voters would suffer “irreparable harm” if the requirement was not dropped.
Judge Judith Rogers said there was evidence the requirement actually decreased the number of people who could register to vote. She cited Kansas data that 17,000 residents are on a “suspension” list of people who began, but have not completed, the voter registration process.
At issue is the move by Brian Newby, executive director of the U.S. Election Assistance Commission, to change the federal form shortly after he took the job last November. Newby is a former Kansas election official who had publicly supported the state’s effort to change the federal registration form.
By contrast, people registering to vote in other states need only to swear that they are citizens, and do not have to show birth certificates or other documents as proof. Alabama and Georgia are not currently enforcing their proof-of-citizenship laws.
Opponents say Newby had no authority to take the action on his own. The Justice Department has refused to defend Newby’s action and has sided with voting rights groups.
Michael Keats, an attorney representing those groups, told the judges that Newby’s conduct “threw the entire structure of the agency out.” He said such changes must be approved by at least three of the independent agency’s four commissioners.
Kansas Secretary of State Kris Kobach argued in favor of the change, saying Kansas voter rolls have risen overall and that any argument that the requirement is affecting the ability of some to register is speculative.
The EAC was created in 2002 to help avoid a repeat of the disputed 2000 presidential election between George W. Bush and Al Gore following ballot confusion in Florida. It is supposed to have four commissioners — two Democrats and two Republicans — but one of the Democratic seats is vacant.
Judge A. Raymond Randolph noted that the commissioners had not taken steps to overrule Newby’s action.