A federal appeals panel in Denver on Monday suggested that a partisan stalemate in Congress may mean that Republicans in Kansas and Arizona will be unable to force federal election officials to impose proof-of-citizenship requirements on voter registration forms. Those two states sued the Elections Assistance Commission after the agency refused to adjust the federal voting registration forms it distributed in Kansas and Arizona to reflect those states’ requirements that voters present documentation that proves they are citizens. A lower court found the commission needed to include the more stringent state language. But on Monday, a three-judge panel of the 10th U.S. Circuit Court of Appeals noted that Congress has not approved a single commissioner to sit on the commission in three years.
The judges were skeptical the agency could decide whether to change the federal form, one way or the other, without any commissioners.
That would leave Kansas and Arizona without a formal decision to challenge in court.
“A political decision has been made by the political branches that they don’t wish to appoint commissioners to the Elections Assistance Commission,” Judge Carlos Lucero told Kansas Secretary of State Kris Kobach, who argued the case for both states. “All of a sudden the courts are asked to step into inherently political questions and make political decisions.”