A federal appeals court on Monday expressed skepticism over Kansas Secretary of State Kris Kobach’s contention that a federal commission must make voters who register using a federal form provide proof-of-citizenship documents required under state law. Kansas and Arizona are trying to force the federal government to add their requirements to federal voter registration forms mandated by the National Voter Registration Act, also known as the motor voter law. Arguing the case before the 10th Circuit Court of Appeals, Kobach said the Election Assistance Commission is required to add the state-specific instructions to the federal form. But Judge Jerome A. Holmes interrupted: “Oh whoa whoa whoa, there’s a big jump there.” Holmes said when the U.S. Supreme Court decided a similar case from Arizona last year, it said states could “request” that the commission add state-specific requirements to the federal form.
The Supreme Court overturned Arizona’s proof-of-citizenship law in that case, Arizona vs. Inter Tribal Council. However, Kobach contends that some of the language used by the court invited further litigation.
On Monday, he argued that the federal commission – particularly when acting without commissioners – has only a “ministerial” duty to accept state laws and apply them to the federal forms. Judge Gregory A. Phillips asked Kobach if the commission didn’t have the authority to deny a state’s request as well as granting one, “Why would we have that word ‘request’ (in the Inter Tribal decision)?”
While states have the authority to set voter qualifications, the federal commission is only allowed to place on the forms requirements that are “necessary” to establish that voters meet the qualifications.