There’s a deep irony about a joint lawsuit Republican state officials in Arizona and Kansas have filed against the Obama administration in order to require voters to present proof of citizenship in order to register to vote: Republicans’ own national obstructionism on voting rights is a key blockade for the state-level restrictions to go through. The lawsuit, filed by Arizona Attorney General Tom Horne, Arizona Secretary of State Ken Bennett and Kansas Secretary of State Kris Kobach and following Scalia’s guidance issued in the Supreme Court case this July, claims that the Obama administration is illegally blocking Arizona and Kansas’ efforts to require proof of citizenship for registering to vote. The suit argues that failing to staff the vacant Election Assistance Commission (EAC), which is charged with overseeing voter registration guidelines related to the national voter registration form, is blocking these states’ ability to change their voter registration processes. “The lack of quorum unconstitutionally prevents Plaintiffs, in violation of the Tenth Amendment, from exercising their constitutional right, power, and privilege of establishing and enforcing voting qualifications, including voter registration requirements,” the states said in their complaint.
Earlier in the summer, Bennett and Kobach sought approval from the EAC to make changes to their respective states’ voting forms that would require proof of citizenship for people seeking to vote. But the EAC could not approve the request because of a lack of a quorum of commissioners on the four-person panel. But the fault over those vacancies may lie with Bennett and Kobach’s own party.
The EAC, created as a result of the Help America Vote Act legislation passed in 2002, hasn’t been fully staffed since 2009 and hasn’t had a quorum since 2010. As EAC commissioners have resigned, Congress has failed to replace them. The last commissioners to resign, Donetta L. Davidson and Gineen Bresso, left in 2011. The commission has been vacant ever sense.
The process for filling those vacancies is as follows: Democrats and Republicans each get a chance to nominate commissioners that the president will appoint to the bipartisan panel, which must ultimately be filled by two commissioners from each party. Democrats submitted their own nominations ever since vacancies opened up, but Republicans have blocked their confirmation in the Senate and haven’t nominated any of their own commissioners.