The battle over requiring voters to prove they are U.S. citizens has been intensely political over the last several years. But it is not one of right vs. wrong. It’s one of right vs. right. The goal of supporters is a sensible one, and so is the goal of opponents. The question is how to weigh each interest — not that the most partisan Democrats or Republicans have shown much inclination to do such calibrating in the name of fairness. Their interest is in gaining or protecting their political advantage. So let’s try to discuss this outside of political advantage. Kansas and Arizona passed laws aimed at making sure no non-citizen casts a ballot. They require prospective voters to show a birth certificate, passport or other document to prove they are citizens. In 2013, Arizona lost a decision in the Supreme Court, which said that it could not unilaterally impose a requirement for voter registration in addition to those imposed under federal law.
Make what you will of Judge Melgren’s analysis of preemption, or the hints of his constitutional stance on the federal-state balance of authority under the Elections Clause—his decision in Kobach v. The United States Election Assistance Commissionis a mechanical exercise that leaves the reader without any sense of what this case isabout. Kansas and Arizona have not merely made a “determination” of what they need to verify the citizenship of state residents seeking to become voters. The history behind this litigation is more complex, with more history to it, and the court knew it. It chose, however, to follow example of the Supreme Court and to do as the High Court has done in other cases, like Purcell v. Gonzalez and Crawford v. Marion County, and leave the real world out. Some might say that the Supreme Court is bound to disregard the politics behind these cases and train its eye on the “law” alone. But the Justices’ fidelity to this proposition is mixed. Justice Scalia, for example, has enlivened his constitutional position on campaign finance doctrine with references to the history of incumbent manipulation of the campaign finance laws—including evidence of political mischief that he found quite compelling in the very case under review.
A federal judge on Wednesday sided with two states that want to force new voters to prove they are citizens, over a federal elections commission. In the process, the ruling opens the door to other states that want to impose proof-of-citizenship requirements — and an almost certain Supreme Court showdown over the latest front in the war on voting rights. Kansas and Arizona both require new registrants to provide a birth certificate, passport or some other proof that they are citizens; they sued the U.S. Election Assistance Commission after the EAC refused to modify its federal form to account for the state requirements. On Wednesday, U.S. District Court Judge Eric Melgren ruled the EAC didn’t have the authority to deny Kansas and Arizona’s request, and ordered the EAC to modify a national voter registration form to include special instructions for residents of the two states. The ruling won’t have much of an immediate impact on voters. Few voters actually register using the federal form; elections officials in Maricopa County, population nearly 4 million, estimated only about 900 residents had registered to vote using the federal form without showing proof of citizenship.
If a federal judge’s disappointing ruling this week on a voter registration case is allowed to stand, state lawmakers around the country could well make it harder for eligible citizens to register to vote in federal as well as state elections. State officials in Kansas and Arizona had sued the United States Election Assistance Commission for refusing to include their strict proof-of-citizenship requirements on the federal voter registration form the commission prepares under the National Voter Registration Act, also known as the “motor voter” law. The federal form requires only that voters state under oath that they are citizens, and while the commission includes certain state-specific instructions on the form, it denied the request by Kansas and Arizona because it found no evidence that noncitizens registering to vote was a “significant problem” in either state.
A federal judge in Kansas on Wednesday ordered federal election authorities to help Kansas and Arizona require proof of citizenship of registering voters, in a decision that could well set a trend for other Republican-dominated states. Judge Eric F. Melgren of United States District Court in Wichita ruled that the federal Election Assistance Commission had no legal authority to deny requests from Kansas and Arizona to add state-specific instructions to a national voter registration form. The states sued the agency to force the action after it had turned them down. The Supreme Court ruled last June that Congress holds full power over federal election rules, but indicated that states could require proof of citizenship in state and local elections. Federal rules require prospective voters only to sign a form attesting to their citizenship, a procedure favored by Democrats who want to increase participation of minorities and the poor in elections, but that Republican officials say fosters voter fraud. In his ruling, Judge Melgren, appointed to the bench by President George W. Bush, characterized the decision by the election commission to deny the states’ requests as “unlawful and in excess of its statutory authority.” He said that Congress had not “pre-empted state laws requiring proof of citizenship through the National Voter Registration Act.”
Voting Blogs: Republican States May Soon Demand Proof of Citizenship for Voting in Federal Elections | Election Law Blog
Today a federal court decided Kobach v. United States Election Assistance Commission.The upshot of this opinion, if it stands on appeal, is that states with Republican legislatures and/or Republican chief election officials are likely to require documentary proof of citizenship for voting, making it harder for Democrats to pursue a relatively simple method of voter registration. The case is complicated and has a complex history, but here are the basics. In 1993, Congress passed the National Voter Registration Act (or “motor voter”), which makes a number of changes at issue in federal elections. Among other things the law requires that states must accept from voters voter registrations submitted on a federal form for voting in congressional elections. Preparing this form used to be the responsibility of the Federal Election Commission, but when Congress created the U.S. Election Assistance Commission as part of its Help America Vote Act after the 2000 contested presidential election, it shifted responsibility for preparing the form to the EAC. The federal form approved by the EAC is a relatively simple form, and those who register voters like to use it for voter registration not only because it is easy, but because it is uniform across the country. Democratic-aligned groups like the federal form a lot.
Efforts by Kansas and Arizona to require people who register to vote by mail to prove they are U.S. citizens were upheld by a federal judge on Wednesday, potentially opening the door for more states to enact such measures. The two Republican-led states had sued the U.S. Election Assistance Commission, set up by Congress after chronic voting problems during the 2000 presidential election, saying the agency wrongly prevented them from demanding such documentation in voter registration forms in the state. Laws passed in the two states requiring proof of citizenship for voters are part of a broader movement in many conservative states to demand would-be voters provide identification to ensure that non-citizens, including undocumented immigrants, cannot influence elections. “Today’s decision is an important victory for the people of Arizona against the Obama administration, assuring that only Arizona residents, and not illegals, vote in Arizona elections,” said Arizona Attorney General Tom Horne, who filed the lawsuit along with Kansas Attorney General Kris Kobach.
National: Judge orders U.S. election commission to help Kansas, Arizona enforce voter law | Associated Press
A federal judge on Wednesday ordered the U.S. Election Assistance Commission to help Kansas and Arizona enforce laws requiring new voters to provide proof of their U.S. citizenship. U.S. District Judge Eric Melgren in Wichita ruled the commission has no legal authority to deny requests from Kansas and Arizona to add state-specific instructions to a national voter registration form. The states and their top election officials — secretaries of state Kris Kobach of Kansas and Ken Bennett of Arizona — sued the agency to force the action.
Kansas: State can require proof of citizenship for voters in federal elections, judge rules | Kansas City Star
Kansas and Arizona can require voters to produce proof of citizenship before letting them vote in federal elections, a judge ruled Wednesday. The federal judge dealt the two states a decided win, ruling that the federal government overstepped its authority by limiting what the states could require of prospective voters. U.S. District Judge Eric Melgren ordered the Election Assistance Commission to immediately modify the federal voter registration form for Kansas and Arizona to include proof of citizenship. “Kansas has paved the way for all states to enact proof-of-citizenship requirements,” Kansas Secretary of State Kris Kobach said. Commission spokesman Bryan Whitener declined to comment, saying the ruling is being reviewed. He wouldn’t say how long it would take to change the federal registration form to comply with the decision.
National: Judge To Decide If State Proof-Of-Citizenship Laws Trump Voter Registration Forms | Fox News Latino
A decision on whether states have a constitutional right to require proof-of-citizenship documentation for their residents who register to vote using a national form is now in the hands of a federal judge in a case with broad implications for voting rights. U.S. District Judge Eric Melgren listened to arguments from attorneys Tuesday, but did not immediately rule. He did not say when he would issue his written decision. The lawsuit filed by Kansas and Arizona seeks to force the U.S. Election Assistance Commission to include the heightened requirements only for their residents. However, the Justice Department has argued that changing the requirements on the federal form for those two states would in essence affect nationwide policy, because it might encourage other states to seek increased proof of citizenship to register to vote in federal elections.
Just a quick review of yesterday’s Senate Rules Committee hearing to hear testimony from the co-chairs of the Presidential Commission on Election Administration and conduct a business hearing on two nominations to the Election Assistance Commission:
• The EAC portion of the hearing did not occur – at least not in the hearing room; Chairman Charles Schumer (D-NY) said that the business meeting to consider those nominations would take place “off the floor” later in the day, but there appears to be no evidence in yesterday’s Congressional Record that the meeting took place;
+ The hearing itself was attended by only four Senators – Schumer, ranking member Pat Roberts (R-KS), Amy Klobuchar (D-MN) and Angus King (I-ME);
• Overall, the hearing was cordial and co-chairs Robert Bauer and Ben Ginsberg had the opportunity to discuss the PCEA report and answer Senators’ questions about its impact on election policy going forward;
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.
National: Federal judge limits extent of court’s review in voter citizenship case | Associated Press
A judge has agreed to limit what material the court can consider in a lawsuit filed by Kansas and Arizona seeking to force federal election officials to modify voter registration forms to require proof-of-citizenship from residents in those states. U.S. District Judge Eric Melgren on Wednesday sided with the U.S. Election Assistance Commission in limiting his review to the existing administrative record, rather than hold an evidentiary hearing in the case.
Kansas and Arizona have rekindled a lawsuit seeking to force the U.S. Election Assistance Commission to require residents to show proof-of-citizenship when registering to vote, arguing that a recent agency decision to deny the requests was unlawful. In a filing late Friday in a case with broad implications for voting rights, the two states asked U.S. District Judge Eric Melgren to order federal officials to include state-specific requirements in federal voter registration forms. Kansas and Arizona require voters to provide a birth certificate, passport or other proof of U.S. citizenship when registering to vote. People who register using the federal form sign only a statement under oath that they are U.S. citizens. The latest legal move was not unexpected. Melgren had previously scheduled a Feb. 11 hearing in the wake of a decision last month by the election commission that rejected the states’ requests, finding that stricter proof-of-citizenship rules hinder eligible citizens from voting in federal elections.
Once the recount was over on Monday, control of Virginia’s Senate was determined by a margin of less than a dozen votes in a special election in which a mere 20 percent of registered voters participated. This wasn’t the first time a high-stakes race depended on an unhealthily small sliver of the electorate. Maybe only so many people will ever bother with a state senate special election. But registration and turnout would be a lot higher across the board if voting in the United States weren’t a Kafkaesque exercise. Government has got to make voting easier. The first thing politicians can do is stop trying to make it harder. GOP lawmakers should end efforts to limit access to the ballot box with restrictive and unnecessary voter identification laws, for example. Then they should fix the things the government was already doing wrong. That’s where a report President Obama commissioned after the 2012 presidential election comes in. The commission included Mr. Obama’s top campaign lawyer — and that of Mitt Romney, his 2012 rival. The result could easily have been a collection of useless platitudes. Instead, the bipartisan panel offered a set of serious changes that could, if state and local election officials took them up, make a big difference.
Kansas’ efforts to erect barriers to voting with stringent proof-of-citizenship requirements have been rebuffed again, this time by the U.S. Election Assistance Commission. And with his typical arrogance, Secretary of State Kris Kobach has brushed off the commission’s ruling as yet another partisan strike against state sovereignty and vowed to continue the legal fight. Meanwhile, Kansas is now only months away from important state elections, and more than 20,000 residents have their voting registrations on hold because of Kobach’s conflict with federal judges and elections officials. Paging Kansas legislators. The best way to avert a well-publicized elections debacle is to fix the statute that imposes the onerous documentation requirements. And the sooner the better.
How disappointing that in a 2,866-word State of the State address quoting the Kansas Constitution’s statement that “all political power is inherent in the people,” Gov. Sam Brownback failed to speak up for the 20,000 people in Kansas whose voter registrations are stalled. At least the U.S. Election Assistance Commission mentioned them in its ruling Friday. Kansas, Arizona and Georgia wanted the commission to provide an instruction on the federal voter-registration form regarding their requirements that those registering in their states provide proof of citizenship such as a birth certificate or passport. Since the Kansas law went into effect in January 2013, more than 20,100 applicants have seen their voter registrations put on a suspense list for lack of paperwork. The EAC staff ruling denying the states’ requests said Congress specifically considered and rejected requiring such documentation when passing the National Voter Registration Act in 1993. “Such burdens do not enhance voter participation, and they could result in a decrease in overall registration of eligible citizens,” the ruling said. It pointed to Kansas’ lengthening list of applicants placed in suspense status, saying the requirements risk discouraging voter-registration drives.
National: Election Assistance Commission rejects voter registration changes for states | Associated Press
The U.S. Election Assistance Commission on Friday rejected requests by Kansas, Arizona and Georgia to modify federal registration forms to allow their states to fully implement proof-of-citizen voting laws for their residents. The decision came just hours before a court-imposed deadline in a lawsuit filed by Kansas and Arizona in U.S. District Court in Kansas. Georgia is not part of that litigation but has similar requirements. The agency found that granting the states’ requests would “likely hinder eligible citizens from registering to vote in federal elections,” undermining the core purpose of the National Voter Registration Act. Most immediately, the issue will likely return to the courtroom of U.S. District Judge Eric Melgren, who has held onto litigation in anticipation of further proceedings. Both states enacted laws requiring new voters to provide a birth certificate, passport or other proof of U.S. citizenship when registering to vote, and most voters use state forms that enforce the requirement. But some voters use the federal form, which requires only that someone sign a statement under oath that he or she is a U.S. citizen, and Kansas and Arizona want to force a change to close what their officials see as a loophole in enforcement of their proof-of-citizenship requirements.
Sen. Tom Courtney isn’t giving up. The Burlington Democrat is turning to the U.S. Senate in his fight against Iowa Secretary of State Matt Schultz’s federally funded investigation of alleged voter fraud. But what he’s asking for is going to be hard to get. Courtney is asking that the Senate appoint enough members to the Election Assistance Commission for it to function. Such a request may seem like a no-brainer. But the four-member federal panel, created in the aftermath of the disputed 2000 presidential election to help with election administration, currently doesn’t have a single commissioner. As the Election Assistance Commission said in its 2012 annual report, it hasn’t had a quorum since 2010. So far, that doesn’t appear to be changing. One of President Barack Obama’s nominees has been waiting two years for the Senate to act on her appointment. The other nominee has been waiting for three years. Many Republicans don’t even think the commission should exist and, the GOP leadership hasn’t put any names forward to serve on what was created as a bipartisan panel.
Editorials: Want to Rock the Vote? Fill the Election Assistance Commission. | Abby Rapoport/American Prospect
Just days after the 2013 elections, former Congresswoman Mary Bono and I were on MSNBC discussing voter-ID laws. A moderate Republican, Bono tried hard to shift the focus to a universally hated aspect of American elections—the lines. “There should be no reason there should be long lines, ever,” she said. “Why [can’t they] orchestrate and engineer a solution that you get to the polls, and there’s 15 minutes, guaranteed in and out, and you vote?” It’s a good question. Even if we forget about the disturbing rash of voting restrictions—the ID laws, the cutbacks to early voting, the efforts to make it harder to register—a basic problem remains: We don’t invest enough in our elections. Across the country, machines are old and breaking down, and we’re failing to use new technology that could clean up our voter rolls and make it easier to predict—and thus prevent—those long lines. The odds of Congress allocating the billions it would take to help localities buy new voting machines and solve other voting problems are slim to none. But there’s already an agency in place that can help jurisdictions run better elections. All Congress has to do is allow it to function. But for House Republicans, that’s asking too much.
An Iowa senator asked a U.S. Senate committee Wednesday to confirm appointees to a federal election commission so a decision can be made about whether Iowa Secretary of State Matt Schultz is properly using money for voter fraud investigations. Schultz, a Republican, last year agreed to pay the Iowa Division of Criminal investigation up to $280,000 over two years to investigate voter fraud. A review of those voter fraud investigations last month by The Des Moines Register found fewer than 20 cases in which charges were brought against alleged cheats and just five cases in which Iowans were convicted of election-related offenses. Sen. Tom Courtney, a Democrat, questions whether the use of the money sent to Iowa as part of the Help America Vote Act was legal. Courtney said the funds are intended for education about voting procedures, voter rights and technology, and not for “a voter fraud goose chase.”
Iowa: Secretary of State will not follow auditor’s recommendation on funding for voter fraud investigation | Des Moines Register
Iowa Secretary of State Matt Schultz will not heed the recommendation issued this week by the State Auditor’s Office urging him to draft contingency plans in case a commission determines his office misused federal funds in a voter fraud investigation. Chief Deputy State Auditor Warren Jenkins advised Schultz in a letter dated Dec. 18 that his office should develop a plan to repay federal funds granted to the office under the Help America Vote Act in case the U.S. Election Assistance Commission decides a two-year agreement Schultz struck with the Iowa Division of Criminal Investigation to look into voter fraud cases is an ineligible use of such funds.
An official with the Iowa Auditor’s office says Secretary of State Matt Schultz should develop a repayment plan in the event the federal funds he is using for an investigation into potential voter fraud is deemed to be improper. Deputy Chief Auditor Warren Jenkins said in a letter that the federal Help America Vote Act “does not specifically address whether the investigation of complaints and potential criminal activity is an allowable expenditure under HAVA.” As a result, he recommended Schultz develop a repayment plan should his office be asked to repay the funds. Last year, Schultz struck an agreement to pay the state’s Division of Criminal Investigation to look into potential voter fraud.
A federal agency has been ordered to take another look at the national voter registration form and consider a change requested by Kansas and Arizona. The two states require proof of citizenship in some cases when registering to vote. The states want the federal form to include instructions on the document requirement. Kansas Secretary of State Kris Kobach says the federal Election Assistance Commission hasn’t yet made a decision. “Because the agency has right now basically said ‘we’re in limbo, we can’t act,'” says Kobach. “And what that means for the state of Kansas and for the state of Arizona is that we cannot fully enforce our laws with respect to one particular form people use for registering.” The commission says it hasn’t acted yet on the request because it is short on commissioners.
National: Federal judge sends voter citizenship lawsuit filed by Kansas, Arizona, back to EAC | Associated Press
A federal judge sent back to federal elections officials Friday a request by Kansas and Arizona to force modifications in a national voter registration form so the states can fully enforce proof-of-citizenship requirements for their residents. U.S. District Judge Eric Melgren gave the U.S. Election Assistance Commission until Jan. 17 to make a final agency decision on the requests by the two states, but kept control of the lawsuit in anticipation of further court proceedings. The commission has told the states it has deferred acting on the request until it has a quorum of commissioners. The panel has been without a quorum since about 2010 and has been without any commissioners since 2011, the judge noted in his order. Melgren found there has been no final agency decision, essentially making a jurisdictional ruling in the case. But he noted that the Justice Department has argued that even without commissioners the agency can act upon the states’ requests.
National: Kill the Election Assistance Commission? Two commissioner nominees languish as Congress mulls axing bedraggled body | Center for Public Integrity
Myrna Perez and Thomas Hicks again sat before a pair of U.S. senators Wednesday for a hearing on their presidential nominations to the Election Assistance Commission. Their session, however, morphed into a debate on whether this little-known and decidedly bedraggled commission — created by Congress in 2002 to help prevent voting meltdowns like those experienced during the 2000 presidential election — should exist at all. “The Election Assistance Commission has fulfilled its purpose and should be eliminated,” declared Sen. Pat Roberts, R-Kansas, the ranking member of the Senate Rules and Administration Committee, which conducted the hearing. He quickly added: “None of my comments are a reflection of the nominees.” Reflection or not, the nominees find themselves in a political purgatory and legislative limbo soupy as any Congress is stirring.
A federal judge will hear arguments Friday in the lawsuit filed by Kansas and Arizona requesting the national voter registration form be changed so that the two states can fully enforce proof-of-citizenship requirements for new voters ahead of the 2014 midterm elections. Kansas Secretary of State Kris Kobach and Arizona counterpart Ken Bennett want the federal court to order the U.S. Election Assistance Commission to include instructions on the federal form that would require Kansas and Arizona residents to provide a birth certificate, passport or other proof of U.S. citizenship when registering to vote. Kobach has pushed the proof-of-citizenship policy as a way to prevent non-citizens — particularly immigrants living in the U.S. without legal permission — from registering and possibly voting. The U.S. Justice Department, which is representing the election commission, has argued that changing the requirements on the federal form for residents of Kansas and Arizona would in essence affect nationwide policy because it might encourage every state to seek increased proof of citizenship in order to register for federal elections. The current federal registration form requires only that someone sign a statement that he or she is a U.S. citizen.
A few weeks ago, a friend and colleague emailed to ask me if the Senate’s recent changes to the cloture rules on nominations meant that the U.S. Election Assistance Commission – vacant since the resignation of two Republican commissioners in late 2011 – would finally get some new members. I replied that it was highly doubtful, saying that I didn’t think Congress was even paying attention to the EAC anymore and that I thought the Senate would save its new firepower for higher-profile posts. I was wrong. This week, the Senate Rules Committee announced that it will be holding a hearing next week to consider the nominations of two potential Democratic commissioners, Myrna Perez and Thomas Hicks.
Arizona: Activists seek to thwart proof-of-citizenship demand for voter registration | The Verde Independent
Attorneys for four Arizona groups involved with voter registration are trying to get a federal judge to kill a bid by Secretary of State Ken Bennett to require proof of citizenship from all who register to vote. Nina Perales of the Mexican American Legal Defense and Educational Fund said the U.S. Supreme Court ruled earlier this year that Arizona cannot enforce its documentation requirement on those who use a special registration form crafted by the federal Election Assistance Commission. “The interest that these Arizona organizations have is in protecting their victory that they just won,’ Perales said. She said Bennett’s lawsuit “is essentially trying to make an end-run around the U.S. Supreme Court decision.’ But Bennett said all he is doing is following a roadmap the high court provided when it ruled against Arizona in June.
Secretary of State Kris Kobach and his critics are tangled in two lawsuits over whether Kansas will create a dual voter registration system, but the disputes are only proxies for ongoing battles over the state’s proof-of-citizenship law. The lawsuits, one each in state and federal court, deal with how Kansas treats prospective voters who use the federal government’s national registration form. The federal form has people sign a statement affirming their U.S. citizenship but doesn’t require them to produce a birth certificate, passport or other citizenship papers. If people use state registration forms, they aren’t eligible to cast ballots in any race until they produce citizenship papers under a law that took effect in January. Under a dual registration system, people who use the state form and comply with the proof-of-citizenship rule could vote in any race on the ballot. People who use the federal forms and don’t submit citizenship papers to election officials would be eligible to vote only in presidential, U.S. Senate and congressional races.