When Brian Newby took the helm of a federal election agency, he left behind an unfolding scandal in Kansas in which he was having an affair with a woman he promoted in his previous job and used her to skirt oversight of their expenses, prompting a local prosecutor to investigate, according to e-mails obtained by the Associated Press. The affair and resulting fallout were revealed in hundreds of e-mails ordered released after the AP sued Johnson County, where Newby was the top election official before leaving to become executive director of the U.S. Election Assistance Commission. The e-mails – coupled with hundreds more obtained from the Kansas secretary of state’s office through a separate open records request – portray an election official who berated employees and deliberately bypassed supervision. They also document a toxic workplace created by his affair with then-Assistant Election Commissioner Jessica White, an apparent violation of county policy on intimate relationships with subordinates. In a June 2015 exchange from his work e-mail to her personal address, the then-married Newby told White: “You, my little lover, are so wonderful.” Newby and White did not respond to numerous phone and e-mail messages seeking comment.
For years, states have been sounding the alarm about voter fraud and pushing laws to prevent it. One such law would require voters to prove their citizenship, with a birth certificate, passport, or the like, before casting a ballot. This month a federal court slapped down proof-of-citizenship laws, but not for good. The opinion leaves wiggle room, and state lawmakers are not giving up. They are, however, wasting their effort. Anti-fraud measures can make elections safer in some circumstances, but usually they either have no effect (other than creating red tape) or make matters worse. My research proves it. Let’s get up to speed. In 2004, Arizonans approved an initiative requiring voters to prove their citizenship before they could vote. In 2013, the Supreme Court held [PDF] that federal law—specifically, the National Voter Registration Act—preempted the initiative. That Act requires states to use a form, developed by the federal Election Assistance Commission, to register voters for federal elections. The form requires would-be voters to swear, under penalty of law, that they are US citizens. States can ask the EAC to add state-specific instructions to the federal form, including additional requirements on citizenship, but they cannot demand it. Other states—Alabama, Georgia, Kansas—adopted laws like Arizona’s, and they worked many channels to get them enforced. But their efforts failed. States courts, federal courts [PDF], and the EAC [PDF] put proof of citizenship on ice.
Here’s the background of the Newby case. Kansas, Georgia and Alabama have been trying to make voting harder for voters through a series of restrictive voter ID laws. Another approach of these states has deployed is forcing voters to produce documentary evidence that they are American citizens when they register to vote. Asking for documentary proof of citizenship may sound reasonable enough, at first blush, but this runs afoul of the federal “motor voter” law which bars states from asking for additional information when voters register to vote using a standard federal form. The whole point of the motor voter law (whose formal name is National Voter Registration Act of 1993), was to make it easier for eligible Americans to register to vote when they were at the local DMV. While the legislators who pass these restrictive voting laws may think they are barring non-citizens from voting, instead these laws can disenfranchise regular Americans, especially those who were born at home instead of a hospital. These Americans may find it difficult, or well neigh impossible, to produce documentation of their birth proving that they are who they know they are: American citizens.
National: U. S. appeals court leaves proof-of-citizenship voting requirement to federal panel | The Washington Post
A U.S. appeals court panel that barred Kansas, Alabama and Georgia from adding a proof-of-citizenship requirement to a federal voter registration form wrote Monday that federal law leaves it to a federal elections agency — not the states — to determine whether such a change is necessary. The 2-to-1 written opinion follows a Sept. 9 order from the U.S. Court of Appeals for the D.C. Circuit. The panel wrote that although the document requirement “unquestionably” hinders voter registration groups ahead of the November elections, there was “precious little” evidence of voter fraud by noncitizens, the problem the states said the measure is intended to fight. The Kansas secretary of state had told the court that “between 2003 and 2015 eighteen noncitizens had tried to or successfully registered to vote. Only one of them attempted to use the Federal Form,” the judges wrote.
High-ranking congressional Democrats are raising more serious concerns about a move by the director of a federal voting agency that made it easier for several red states to require documentary proof of citizenship from people registering to vote. Rep. Elijah E. Cummings, Rep. Robert A. Brady and Rep. James E. Clyburn urged the Election Assistance Commission in a letter sent Wednesday to formally rescind a change made in January to the instructions on the federal voter registration form for Kansas, Georgia and Alabama, which allowed those states to require citizenship proof. A federal court found this month that the move, which was carried out unilaterally by the agency’s executive director, Brian Newby, could disenfranchise large numbers of eligible voters. Ruling that the move may violate federal voting law, the court blocked it from being enforced pending a resolution of the case. The letter outlines what the lawmakers called “troubling findings” from their probe into the issue — among them, that Newby conducted no written analysis of the impact of the change, and that he himself may no longer be certain that it was legal.
Voting rights advocates are accusing a Washington bureaucrat of helping Republican-led states enforce tight restrictions on voter registration, a move they say turned a federal voting agency into a de facto ally of state officials looking to make voting harder. A progressive group on Wednesday called on the federal Election Assistance Commission (EAC) to conduct an internal investigation into the actions taken by Brian Newby, the agency’s executive director. The group, Allied Progress, charged that Newby had improper private communications with his former boss, Kansas Secretary of State Kris Kobach, and perhaps other election officials, about their requests to change the federal voter registration form to require applicants to show proof of citizenship. Patricia Layfield, the inspector general of the EAC, said no decision had yet been made on whether to open an investigation into Newby’s actions. “I continue to consider the various options available,” Layfield told NBC. “I’m taking the concerns expressed in the letter very seriously.”
Kansas: DC group wants inspector general to examine Brian Newby’s voter decision | The Kansas City Star
A Washington group has renewed its call for an investigation of Brian Newby, the former head of the Johnson County Election Office and now in charge of the U.S. Election Assistance Commission, or EAC. Allied Progress has written the EAC’s inspector general, asking her to examine Newby’s decision to approve applications from three states, including Kansas, to modify their federal registration forms in order to require documentary proof of citizenship to register. Newby made the decision to allow the changes despite the absence of formal approval from the EAC’s board of comissioners. Newby said he had the authority to make the decision on his own. Several groups sued to stop implementation of the requirement. In September, a federal appeals court blocked Kansas and the other states from changing their federal forms to require citizenship proof.
A federal court has blocked Kansas and two other states from requiring voters to show proof of citizenship if they register using the federal form. The U.S. Election Assistance Commission approved a controversial rule in late January to allow Kansas, Georgia and Alabama to require proof of citizenship from voters who register using the federal form. The League of Women Voters brought a lawsuit against the rule, and the U.S. Circuit of Appeals for the District of Columbia granted a preliminary injunction Friday by a 2-1 decision. Under the order, Kansas can no longer require people to show proof of citizenship when they register using the federal form and must allow anyone who registered after Jan. 29 to vote regardless of whether they provided proof of citizenship.
National: Appeals Court Blocks Proof-of-Citizenship Requirement for Voters in 3 States | Associated Press
A federal appeals court on Friday blocked Kansas, Georgia and Alabama from requiring residents to prove they are U.S. citizens when registering to vote using a national form. The 2-1 ruling is a victory for voting rights groups who said a U.S. election official illegally changed proof-of-citizenship requirements on the federal registration form at the behest of the three states. People registering to vote in other states are only required to swear that that they are citizens, not show documentary proof. The three-judge panel of the U.S. Court of Appeals for the District of Columbia acted swiftly in the case, issuing a two-page, unsigned ruling just a day after hearing oral arguments. A federal judge in July had refused to block the requirement while the case is considered on the merits.
National: U.S. appeals court to hear challenge to proof-of-citizenship voting requirement | The Washington Post
U.S. appeals court to hear challenge to proof-of-citizenship voting requirement | The Washington Post
A federal appeals court on Thursday seemed likely to side with voting rights groups seeking to block Kansas, Georgia and Alabama from requiring residents to prove they are U.S. citizens when registering to vote using a national form. Judges hearing arguments in the case considered whether to overturn a decision by a U.S. election official who changed the form’s proof-of-citizenship requirements at the behest of the three states, without public notice. The dispute is part of a slew of challenges this year that civil rights groups have brought against various state voting laws they claim are designed to dampen turnout among minority groups that tend to favor Democrats. Those challengers have already succeeded in stopping voter ID requirements in North Carolina and Texas and restrictions elsewhere. In the citizenship case, a coalition including the League of Women Voters and civil rights groups say the requirement to show proof undermines efforts to register new voters and deprives eligible voters of the right to vote in federal elections.
For years, Kris Kobach has fought against illegal immigration. He helped write two of the nation’s most strict immigration laws in Arizona and Alabama and helped develop a now-defunct national immigration security system. Now Kobach, the Republican secretary of state for Kansas, is embroiled in court fights over his repeated attempts to require Kansans to provide proof of citizenship to register to vote. Although he has repeatedly lost in court, one case that remains open will determine whether thousands of Kansans will be able to vote in November’s local and state elections. The saga began in 2011 when Kansas passed the Secure and Fair Elections Act. The law, written by Kobach, requires those registering to vote after Jan. 1, 2013, to provide documentary proof of U.S. citizenship, such as a birth certificate or a passport. … In September 2013, the ACLU sued Kobach, contending that the proof of citizenship requirement split Kansas voters into two “separate and unequal classes.” In June 2013, the U.S. Supreme Court ruled that states could not require proof of citizenship for people who register using the U.S. Election Assistance Commission’s national mail voter registration form. Kobach was allowing those who registered in Kansas with proof of citizenship to vote in all elections, but prohibited those who registered with the EAC form – without proof of citizenship – from voting in state and local elections in Kansas.
A federal appeals court will hear oral arguments in September in an appeal that could affect the voting rights of thousands of voters in Kansas, Georgia and Alabama in upcoming elections. The U.S. Court of Appeals for the District of Columbia on Thursday set a Sept. 8 hearing date in the case of a U.S. election official who without public notice required documentary proof of citizenship on a national voter registration form used by residents of the three states.
The right to vote is turning into a tooth-and-claw saga in Kansas, thanks to right-wing ideologues’ determination to force new voters to produce a passport, a birth certificate or naturalization papers as proof of citizenship. This is unheard-of in most of the nation, where aspiring voters are required only to swear to being citizens under penalty of prosecution for fraud. But in Kansas, the requirement that citizenship be documented has become a grave electoral impediment that is being challenged on two legal fronts. In the first, a federal district judge in May ordered the state to register thousands of people who had been denied federal voting privileges because they did not produce proof of citizenship when they tried to register at motor vehicle offices. Judge Julie Robinson ruled that the requirement violated the National Voter Registration Act provision that “only the minimum amount of information” is needed to certify a voter. The state is appealing her ruling.
There is nothing more important to American democracy than the participation of its citizens through voting. Voting in local, state and federal elections is a precious right that unfortunately is the subject of considerable confusion in Kansas these days. With the primary election less than a month away, Kansas remains mired in a number of court battles over which registered voters are allowed to vote and in which contests. Last week, a federal judge refused to block a decision by the executive director of the U.S. Election Assistance Commission to require voters in Kansas, Georgia and Alabama to present proof of citizenship to complete their registrations using a federal form. In other states, the federal voter registration form requires voters to swear under penalty of perjury that they are citizens but doesn’t require citizenship proof such as a birth certificate or passport. Legal action challenging the EAC decision still is active, but the judge said the decision should stand until the case is decided at trial.
National: Federal judge rejects bid to block proof of citizenship for new voters in three states | The Washington Post
A federal judge in Washington on Wednesday rejected a request that would have blocked Kansas, Alabama and Georgia from enforcing proof-of-citizenship requirements for people using a federal form to register to vote. The decision by U.S. District Judge Richard J. Leon came in a lawsuit brought by the League of Women Voters, the NAACP in Georgia and other civil rights groups that sought a preliminary injunction. The groups filed suit in February after Brian D. Newby, executive director of the U.S. Election Assistance Commission, notified the three states in a Jan. 29 letter that they could require documentary proof of citizenship on the federal voter registration form. The Justice Department did not defend Newby’s decision and instead sided with the plaintiffs. A department spokeswoman declined to comment Wednesday.
Lawyers for the American Civil Liberties Union are asking a federal judge in Washington, D.C., to act quickly on their motion to block the use of amended federal voter registration forms that require Kansans to show proof of U.S. citizenship. In a letter to Judge Richard J. Leon, the ACLU said leaving the issue unresolved threatens to complicate upcoming state and federal elections in Kansas and the two other states involved in the case. “The federal primary elections will take place in Kansas on August (2), 2016, just over a month from now,” the letter stated. “The general federal elections will occur in November, a mere four months from now, and voter registration requirements in Kansas, Alabama and Georgia require resolution well before then.”
Kansas: Judge Reiterates Kansas Attorney General Kobach Unable to Encumber Voting | Associated Press
A judge is standing by his earlier ruling that Kansas Secretary of State Kris Kobach has no legal right to bar people from casting ballots in local and state elections because they registered to vote using a federal form that did not require proof of citizenship. In a ruling made public Thursday, Shawnee County District Judge Franklin Theis rejected Kobach’s request that he reconsider an earlier decision. Theis said in January that the right to vote under state law is not tied to the method of registration. Two weeks after that decision, Brian Newby, the new executive director of the U.S. Election Assistance Commission, added a documentary citizenship requirement on the national voter registration form for residents of Kansas, Georgia and Alabama. Newby unilaterally changed the national form without approval from the agency’s commissioners. That change prompted Kobach to ask the judge to reconsider his ruling.
Kansas: Former Johnson County election chief Brian Newby rises, then falls into national controversy | The Kansas City Star
The League of Women Voters in 2014 honored Brian D. Newby, then the Johnson County election commissioner, for his work in helping people register to vote. The league this year sued him for allegedly doing the opposite. Yet, as Newby said recently in a brief phone interview, “I’m the same person with the same values” as that award recipient. Recent headlines tell a different story, one of a spectacular fall into unfamiliar controversy. Once regarded as something of a rock star among the nation’s election gurus, Newby has drawn intense fire from more than one direction after becoming executive director of a bipartisan federal elections panel in November. Voting rights groups have asked a federal court to invalidate one of Newby’s first actions taken at the helm of the U.S. Election Assistance Commission. Some have alleged that a unilateral decision he made was a gift to his former boss, Kansas Secretary of State Kris Kobach, who had offered high praise of Newby to the federal commission considering his appointment.
Three Democratic U.S. congressmen on Wednesday asked a federal agency to provide information regarding whether a top federal elections official had the right to unilaterally change voter registration forms in three states to require proof of citizenship. Reps. Elijah Cummings, Robert Brady and James E. Clyburn asked the chairman of the Election Assistance Commission for records connected to EAC executive director Brian Newby’s amendment in February of forms in Kansas, Alabama and Georgia. The group is seeking documents relating to requests from the three states to modify voter registration forms; all analysis of the impact of modifying federal voter registration forms; and all documents giving Newby the authority to unilaterally make the changes. Voting rights activists criticized the changes Newby made in February as a “secretive move” that created additional barriers for potential voters.
Brian Newby’s once-sterling reputation as the leader of the Johnson County Election Office has lost most of its shine in recent months. The latest blow: District Attorney Stephen Howe’s office reportedly is investigating allegations that Newby misused public funds during his time at the office, which is financed with county taxpayer dollars. An audit released earlier this year identified about $36,000 in costs it considered questionably related to Newby’s duties. The county said it would ask that he reimburse $5,478 in travel expenses. Newby has denied doing anything wrong. However, controversy also has dogged the former Johnson County official in his new role as executive director of the U.S. Election Assistance Commission in Washington, D.C. The nonpartisan office is supposed to help make voting more accessible and promote good election practices.
A Kansas prosecutor is looking into allegations of misuse of public funds against a top U.S. election executive when he was a county election commissioner in the state, two county officials confirmed Monday. Johnson County spokeswoman Sharon Watson said that the county had concerns over the findings of an audit completed after Brian Newby left Kansas to take a job as executive director of the U.S. Election Assistance Commission in November last year. The federal commission was created in part to help make voting easier but advocates have said Newby has worked for restrictions. “It was appropriate for us to inform the district attorney of what we were finding in the audit and provide him with that information,” Watson said.
National: Election Assistance Commission Advisory Board Disagrees With Director Over Citizenship Rule | NPR
It looks like more bad news for the new executive director of the U.S. Election Assistance Commission. Brian Newby is already being sued by the League of Women Voters for his decision earlier this year to allow Kansas and two other states to require residents to show proof of citizenship when they register to vote using a federal form. The move effectively reversed a long-standing EAC policy. Now, the EAC’s advisory board — composed of election officials from around the country — has approved a resolution saying that such changes should be made by the commissioners themselves. The resolution, passed by a 13-7 vote during a two-day board meeting in Chicago, is only advisory, but clearly shows dissatisfaction with Newby’s actions. Commission Chairman Thomas Hicks says it’s now up to the commission to take the recommendation “under advisement” and decide what to do.
More than 116,000 people have signed an online petition urging the inspector general to investigate what it calls voter suppression at a federal government agency entrusted with making voting more accessible. The progressive advocacy group CREDO Action said it planned to deliver petition signatures Wednesday to the U.S. Election Assistance Commission’s Inspector General Patricia Layfield.
Voting rolls in Kansas are in “chaos” because of the state’s proof-of-citizenship requirements, the American Civil Liberties Union has argued in a court document, noting that about two-thirds of new voter registration applications submitted during a three-week period in February are on hold. Kansas is fending off multiple legal challenges from voting rights activists, and just months before the state’s August primary, the status of the “dual registration” system remains unclear. Federal judges in separate voter-registration lawsuits unfolding in Kansas and Washington, D.C., could rule at any time. There’s also greater urgency because registrations typically surge during an election year. Kansas is one of four states, along with Georgia, Alabama and Arizona, to require documentary proof of citizenship — such as a birth certificate, passport or naturalization papers — to register to vote. Under Kansas’ challenged system, voters who registered using a federal form, which hadn’t required proof of U.S. citizenship, could only vote in federal races and not in state or local races. Kansas says it will keep the dual voting system in place for upcoming elections if the courts allow its residents to register to vote either with a federal form or at motor vehicle offices without providing proof of citizenship.
Editorials: Brian Newby and Kris Kobach are tangled in a web of voter restrictions | Steve Rose/The Kansas City Star
The Brian Newby I knew in the 11 years he served as Johnson County election commissioner thought the big deal about voter fraud was blown way out of proportion. We discussed this on several occasions. I knew he had to be careful what he said because his boss — the one who appointed him — was none other than Kansas Secretary of State Kris Kobach. Kobach has a national reputation as one of the most virulent crusaders for restrictive voting because, Kobach claims, he wants to stamp out voter fraud. There has been no indication in Kansas or anywhere else that voter fraud is a major issue. Kobach pushed for laws that require Kansans who want to register to vote to come up with documents like a passport or birth certificate, which tens of thousands of Kansans — mostly poor — don’t have, and therefore they cannot vote. (Note: This is not about showing a driver’s license at the time you vote, which is a reasonable request.) Newby told me that over his entire term he came across only a couple of instances of double-voting that could technically be defined as fraud. However, Newby was clear that he thought these were mistakes, not intentional fraud.
For 10 years, the Election Assistance Commission, the bipartisan federal agency created after the 2000 election debacle to help make voting easier and more standardized, has made it clear that prospective voters do not need to prove that they are American citizens before they may register. Anyone registering to vote with the federal voter-registration form, which can be used for both federal and state elections, must already sign a statement swearing that he or she is a citizen. Congress rejected a proposal to require documented proof as well, finding that the threat of criminal prosecution for a false statement was enough to deter fraud. This did not satisfy some states, like Kansas and Arizona, where Republican officials have fought for years to block voting by anyone who cannot come up with a birth certificate or a passport.
When the Presidential Commission on Election Administration held hearings around the country, the future of the Election Commission Administration came up regularly in discussions and testimony. The EAC had no Commissioners, and the concern was chiefly that it could not attend to its responsibility for voting machine standards and certification. There was also a sense that the absence of the EAC—amid indications of neglect, partisan stand-off, or both—highlighted the weakness of a national commitment to progress in professional election administration. The EAC was an invaluable resource for administrators, and, if it could steer clear of partisan conflict, it could perform a valuable service to the election administration community—and to the voters. The EAC then got enough Commissioners for a quorum and full operations. This was a period of considerable promise, and those working in the field moved quickly to engage with the EAC. For example, early on Ben Ginsberg and I sent a letter urging that the newly functional Commission initiate steps to improve the standard-setting and certification process for voting machines. The Commission subsequently acted, and it did so unanimously. EAC-sponsored discussions in which former PCEA Commissioners and election administrators participated heightened the expectation that the Commission could help mark out the ground for professional administration even in a period of intense political and other conflict over voting rights. There were warm and encouraging words all around.
The federal Election Assistance Commission was formed after the disputed 2000 election between George W. Bush and Al Gore and given an innocuous name and a seemingly inoffensive mission: to help state election officials make it easier to vote. In this ideologically riven election season, it turns out, that is not easy at all. The election commission is in federal court this month, essentially accused of trying to suppress voter turnout in this November’s election. The Justice Department, its nominal legal counsel, has declined to defend it. Its case instead is being pleaded by one of the nation’s leading advocates of voting restrictions. The agency’s chairman has disavowed its actions. The quarrel exemplifies how the mere act of voting has become enmeshed in volatile partisan politics. Seventeen states will impose new voting restrictions for November’s presidential election. Many are the object of disputes between those who say they are rooting out voter fraud and those who say the real goal is to keep Democratic-leaning voters from casting ballots.
Kansas Secretary of State Kris Kobach loses a legal fight with the U.S. Election Assistance Commission. Then a Kobach appointee newly hired to lead the EAC unilaterally does what his former boss wanted. And an agency created by the 2002 Help America Vote Act is cast in the unlikely role of joining Kobach in making it harder for Americans to vote. The sequence of events looks more sketchy in light of documents obtained by the Associated Press. They indicate that the ties to Kobach helped then-Johnson County Election Commissioner Brian Newby get the job last fall as the EAC’s executive director. Once hired, Newby promptly granted Kobach’s renewed request to require that would-be voters in Kansas, Georgia and Alabama provide citizenship documents when they use the national voter registration form. According to AP, Newby had e-mailed Kobach last summer that he was friends with two EAC commissioners and that “I think I would enter the job empowered to lead the way I want to.” Newby had further advised Kobach: “I also don’t want you thinking that you can’t count on me in an upcoming period that will tax our resources.”