A decision on whether the federal government must follow Kansas’ rules requiring proof of citizenship to register to vote could come by the end of September, in time for the Nov. 4 general election, according to a federal agency’s filing in a Denver appeals court.
A federal lawyer has suggested that oral arguments in the case could be held as early as July 21 or as late as Sept. 8 and still leave the 10th Circuit Court of Appeals enough time to decide the case by Sept. 30, “in time to inform registration in the run-up to the general election.”
The deadline to register for the general election is Oct. 14.
The court conflict is over a federal registration form authorized by the national Help America Vote Act. That form requires prospective voters to swear they are citizens, under penalty of law.
Kansas law and its registration form are stricter about the registration requirements, saying new registrants must provide copies of documents to prove their citizenship. That usually means a birth certificate or passport, although other documents are accepted in special circumstances, such as for naturalized citizens, tribal voters and U.S. citizens living abroad.
The proof-of-citizenship requirement is separate from a companion measure that requires voters to show state-issued photo ID at the polls, which is not at issue in the current case.
Kansas Secretary of State Kris Kobach, who championed the state proof-of-citizenship requirement in the Legislature and has been the lead lawyer defending the state’s position in court, could not be reached for comment.
He has said that if he is not allowed to require citizenship-proving documents from voters using the federal form, he will limit those voters to federal races only. That would mean they could vote only in congressional and presidential races.
Very few Kansas voters have registered using the federal form, but Kobach has instructed county election officials to segregate those registrations in case he implements the two-tiered voting system.
In more than 130 pages of filings Tuesday, acting U.S. Assistant Attorney General Jocelyn Samuels laid out the proposed schedule and stated the federal government’s case for the appeal.
Samuels is representing the Election Assistance Commission, the agency in charge of the federal registration form. The commission is resisting Kobach’s demands that it add Kansas-specific instructions requiring documented proof of citizenship.
She argued that adding Kansas’ proof-of-citizenship requirements to federal voting-registration forms would put an unnecessary burden on voters and conflict with federal law.
Kansas and its partner in the case, Arizona, “failed to demonstrate any substantial problem of noncitizens registering to vote using the existing federal form, let alone one that justifies imposing a considerable burden on voter registration efforts,” Samuels’ brief said.
She noted that both states had found only 217 instances of suspected illegal registrations out of millions of eligible voters.
“The states contended that the commission was required to credit their factual assertion that the small number of cases they pointed to must be but the ‘tip’ of a much larger ‘iceberg’ that so far has eluded their enforcement capabilities,” Samuels wrote. “Whether or not the commission reasonably could have drawn such an inference from such scant evidence, it surely was not required to do so.”
Samuels’ filing was accompanied by an additional 170 pages from voting-rights groups favoring the federal position and opposing Kansas’ proof-of-citizenship law, including the League of Women Voters, Common Cause and Project Vote.
Those groups said the proof-of-citizenship requirement unduly interferes with their efforts to register voters “due to the logistical impossibility for volunteers to copy and handle the necessary documentation and the fact that most potential applicants do not carry documents like passports or birth certificates around with them.”
“One League chapter in Kansas went from helping over 300 voters register in 2012 to under 40 in all of 2013,” the brief said.
Kobach has argued that the requirement is not overly burdensome because prospective voters can fill out the form and provide their documents later.
Although thousands of Kansas registrants have had their voting privileges suspended for failure to provide citizenship proof, Kobach said he expects more people to provide documentation and complete the registration process as Election Day draws closer.
Kobach is the lead attorney for both Kansas and Arizona in the underlying lawsuit against the commission. The states say that the current federal form creates a loophole in their ongoing efforts to prevent fraudulent voting.
The commission and the voting-rights groups are asking the appellate court to overturn a decision by Wichita U.S. District Judge Eric Melgren, who ruled that the commission must immediately add the state-specific proof-of-citizenship requirements to its form.
Earlier this month, the Denver court stayed Melgren’s order while it hears the appeal.