A judge strongly questioned Tuesday whether a federal commission has the authority to prevent Kansas and Arizona from demanding proof-of-citizenship documents from people trying to register to vote using federal forms. Judge Eric Melgren repeatedly pressed Department of Justice lawyer Bradley Heard to explain how a Supreme Court decision last year on Arizona’s proof-of-citizenship law allows the federal Election Assistance Commission to reject requests from Arizona and Kansas to add state-law requirements to the instructions for filling out the voting form. “The single pivotal question in this case is who gets to decide … what’s necessary” to establish citizenship for voting, Melgren said. Heard said that decision lies with the EAC under the federal National Voter Registration Act, also known as the motor-voter law. He said the law empowers the commission to decide what questions and proofs are necessary to include in the federal registration form.
While the law doesn’t explicitly state the EAC can overrule states on proof of citizenship, Heard said the legislative history shows that requiring document proof was considered and rejected by Congress. “I’ve read the legislative history, and I’m not very impressed by it,” Melgren responded.
Kansas Secretary of State Kris Kobach represented both Kansas and Arizona in the hearing. He’s seeking a ruling that would require all new registrants in those states to provide document proof of citizenship regardless of whether they use a state or federal form.
Melgren pressed Kobach at one point, on whether the commission has to automatically add anything to the federal form that a state legislature and governor might approve. Melgren gave the hypothetical example of Kansas passing a law denying the right to vote to people of Swedish descent, and asked Kobach whether the EAC would have to add that to the federal form. “Yes, yeah, they would,” Kobach responded. He added that such a law would be unconstitutional and sure to be struck down, but a court – not the EAC – should make that decision.