A federal appeals court has delivered a new setback to officials in Arizona and Kansas, ruling that residents in those states can continue registering to vote for now using a federal form without having to show proof of citizenship. The decision is the latest blow to Kansas Secretary of State Kris Kobach, who says the federal form — which requires only that people attest under penalty of perjury that they are citizens — creates a “massive loophole” in the enforcement of voting laws in Kansas and Arizona aimed at keeping noncitizens off the rolls. Late Monday, the 10th U.S. Circuit Court of Appeals in Denver extended its halt to U.S. District Judge Eric Melgren’s March 19 decision ordering the U.S. Election Assistance Commission to add instructions for Arizona and Kansas residents on the federal voter registration form about those states’ proof-of-citizenship requirements. Earlier this month, the same court had issued an emergency stay. The court also granted a request for a quick hearing in the case.
On Tuesday, Kobach softened his earlier threat to implement in Kansas a dual election system in which people who registered using the federal form without citizenship documentation would get a separate ballot listing only federal races. Kobach now says Kansas may not need to do that if the appeals court upholds Melgren’s order before the Aug. 5 Kansas primary.
“We were somewhat disappointed, but there is a silver lining,” Kobach said of the Monday ruling. “Obviously we would prefer Melgren’s decision would stand and would be in effect through the election of 2014 and the court could issue its ruling after November — that would be the most desirable outcome. However, the silver lining here is that the 10th Circuit has decided to expedite the case so that may still get us to the same destination, just by a more hurried route.”
Arizona election officials say they are moving ahead with a two-tier election system allowing those who registered using the federal form and provided no documentation to vote only for federal offices.