Even the federal government says the director of a federal election agency erred when he allowed a group of red states to require proof of citizenship for those looking to vote. In a court filing Monday, the U.S. Department of Justice wrote that it supported a motion by voting groups to immediately halt the controversial move made last month by Brian Newby, the executive director of the Election Assistance Commission (EAC). DoJ lawyers wrote that because the proof of citizenship requirement violates federal voting law, Newby’s decision was “not consistent with the statute” and “contrary to governing law.” The filing means that Newby’s position that the change was appropriate is in effect being disowned by his own legal team. Despite the DoJ’s stance, at a hearing Monday afternoon, U.S. District Court Judge Richard Leon declined to grant the voting rights groups’ request for a temporary restraining order against the move. Leon indicated that he wanted to wait until the full facts of the case are presented. A hearing is scheduled for March 9.
In late January, Newby informed Kansas, Georgia and Alabama officials that he had approved their request to change the state-specific instructions that accompany the federal voter registration form, adding a requirement that applicants present proof of citizenship. All three states have passed proof-of-citizenship laws for voter registration. Newby’s surprising move set off an uproar among voting rights groups, who noted that the EAC had rejected past requests by Kansas to change the form. The agency had said that the change violates the National Voter Registration Law, which aims to make voting as easy as possible. A federal court upheld that view in 2014.
Also in the filing, Newby said in a sworn deposition that he decided to change the form after receiving a list of non-citizens who had “recently” registered to vote in Kansas. The list was sent by Kansas Secretary of State Kris Kobach, who was requesting the change. Newby said in the deposition that after receiving the list from Kobach, “I began developing a point of view that previous decisions by the EAC might have been wrong.”
In fact, the list, from Kansas’ Sedgwick County, showed that seven non-citizens registered in the decade before the state’s proof of citizenship law went into effect in 2013. And it showed that 11 non-citizens had been stopped from registering since then, though it’s unclear whether the law was responsible. Meanwhile, voting rights groups have said over 40,000 registrations have been thrown out or suspended because of the law.