Judge tells Trump what courts told Kobach: It’s illegal to tamper with voting rights | Opinion
Remember that time that the federal courts told Kris Kobach it was illegal to try to force us to show birth certificates or passports to register to vote?
Now, a federal court has ruled it isn’t any more legal when Donald Trump tries to do it.
The chief judge of the District of Columbia District Court last week blocked the “proof of citizenship” requirements in an executive order the president signed shortly after taking office for the second time.
But it’s not the end of the threat to your voting rights. More on that in a minute.
In a decision issued Thursday, Judge Colleen Kollar-Kotelly ruled that Trump doesn’t have the authority to boss around the members of the U.S. Election Assistance Commission and force them to require that Americans registering to vote provide paper documents to prove they’re citizens.
“The President’s power, if any, to issue an executive order must stem either from an act of Congress or from the Constitution itself,” Kollar-Kotelly wrote in her decision. “This is ‘black letter law’ . . . And the reason is simple: ‘In the framework of our Constitution, the President’s power to see that the laws are faithfully executed refutes the idea that he is to be a lawmaker.’ . . . He cannot make new law or devise new authority for himself — by executive order or otherwise.”
Citizenship already required to vote
To prevent election hanky-panky, Congress created the EAC as an independent and bipartisan commission to oversee the conduct of voter registration.
Only the commission or Congress can order changes in the federal registration form, the judge ruled.
“Neither the Constitution nor any statute explicitly grants the President the power to dictate the contents of the Federal Form,” Kollar-Kotelly wrote in her order. “On the contrary, both the Constitution’s Elections Clause and the NVRA (National Voter Registration Act) vest control over federal election regulation in other actors, leaving no role for the President.”
Citizenship is already required of all voters in federal elections, and the federal registration form requires that all applicants certify that by signing an affidavit under penalty of perjury.
In fact, the judge pointed out that when Congress passed the NVRA, it specifically nixed the idea of requiring voters to go through a burdensome process to prove citizenship.
“The Conference Committee on the bill that became the NVRA considered and rejected an amendment proposed in the Senate that would have expressly allowed States to ‘require presentation of documentation relating to citizenship of an applicant for voter registration,’” the judge wrote. “The Conference Committee concluded that such an amendment was ‘not necessary or consistent with the purposes of this Act’ and ‘could be interpreted by States to permit registration requirements that could effectively eliminate, or seriously interfere with, the mail registration program of the Act.’”
That’s essentially the same thing the 10th Circuit Court of Appeals said 10 years ago, when Kobach, then Kansas Secretary of State, tried to force the EAC to add SAFE Act-compliant “state-specific instructions” to the federal form.
When REAL ID is not real enough
As always whenever I write about this topic, I have to point out that this not about showing your driver’s license at the polls.
Proof of citizenship basically requires either your birth certificate, passport, naturalization papers or military ID. Extra documentation is required from women who took their husband’s name when they got married.
Tens of millions of Americans don’t have those documents readily available.
Even the so-called “Real ID” drivers’ license doesn’t cut it. But Trump’s executive order was cleverly — and deceptively — written to try to imply that it does.
What it actually says is “an identification document compliant with the requirements of the REAL ID Act ... that indicates the applicant is a citizen of the United States” (emphasis added).
So take out your Kansas Real ID driver’s license and try to find where it says you’re a citizen. You’ll be looking a long time, because it doesn’t.
A Real ID can get you on a plane or into a federal building, but they are issued to citizens and noncitizen legal residents of the United States, so they’re emphatically not proof of citizenship.
The only kind of driver’s license that does prove your citizenship is what’s called an “enhanced” license, that allows you to cross U.S. borders between Canada, Mexico or the Caribbean.
You’ve probably never heard of enhanced licenses, because you can only get one if you live in Michigan, Minnesota, New York, Vermont or Washington.
Proponents of proof of citizenship say it’s to crack down on noncitizens voting in elections.
It’s been proven over and over there’s no actual problem with that — and they know there’s not — it just sounds better than “We want to make it hard for women and poor people to vote.”
If you don’t believe me, I’d commend your attention to Section 2 (d) of Trump’s executive order, which singles out the poor for special attention when trying to register to vote.
That section requires that federal agencies “shall assess citizenship prior to providing a Federal voter registration form to enrollees of public assistance programs.”
Fortunately, the judge struck down that part of Trump’s executive order too.
Threat continues in Congress
This isn’t just another column about another Trump power grab getting shot down in court — which happens with alarming frequency.
Your right to vote without having to jump through hoops is also under threat in Congress itself.
It’s called the SAVE Act, and it would do basically the same thing Trump wants to do with his executive order and what Kobach tried to do in Kansas with the SAFE Act.
The SAFE Act resulted in the suspension of voting rights for 30,000 legitimate Kansas citizens until the courts blocked it. The SAVE Act would do the same, but to tens of millions of Americans.
The SAVE Act passed the House, but faces a tougher road in the Senate.
This might be a good time to call or write Sen. Jerry Moran and let him know you’d appreciate it if he would stand up for American democracy instead of standing against it.
Sadly, trying to contact our other senator, Roger Marshall, would be an epic waste of time. He’s totally on board with the SAVE Act — along with anything else Trump tells him to be for. And he’s demonstrated he really couldn’t care less what anyone else thinks.
Marshall, Trump and Kobach are all smart enough to know what the SAVE Act is really all about — election manipulation through selective voter suppression.
They’re counting on you not to be smart enough to figure that out.
This story was originally published April 30, 2025 at 4:51 AM.
