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.
Arizona tried a similar tactic of asking for proof of citizenship from new registrants, but the state was rebuffed by the Supreme Court. The court held in Arizona v. Inter Tribal Council of Arizona, Inc., 133 S. Ct. 2247 (2013) that the federal motor voter law preempted conflicting state law, that the state had to follow the federal law, and it could not add an additional requirement of asking for proof of citizenship without the permission of the Election Assistance Commission (EAC). The EAC later ruled that asking for additional proof of citizenship was invalid for the federal form, which already asks individuals to swear they are citizens under penalty of perjury.
Following the Supreme Court decision on Arizona’s proof of citizenship requirements, Kansas, Georgia and Alabama pushed forward with efforts to require additional proof of citizenship by new registrants. But they took the extra step of asking the Election Assistance Commission for permission to ask voters for additional proof. In an unusual move, Brian D. Newby, Executive Director of the Election Assistance Commission granted the request for Alabama, Georgia and Kansas. Voting rights advocates sued to overturn Newby’s decision.
In the meantime, the new restrictive laws had their intended restrictive effect. For example, in Kansas, according to Reuters, 14% of new registrants between 2013 and 2015, were placed on a list of ineligible voters for failure to produce the necessary documentation to prove their citizenship.
On September 9, 2016, a federal court ruled in League of Women Voters v. Newby [PDF] in the plaintiffs favor, and ordered “that the [US] Election Assistance Commission …, and anyone acting on its behalf, be enjoined from giving effect to the January 29, 2016, decisions of its Executive Director, Brian D. Newby, approving requests by Kansas, Alabama and Georgia to add a proof of citizenship requirement to the state-specific instructions that accompany the National Mail Voter Registration Form…”
Full Article: JURIST – What’s the Matter with Kansas: The Voting Edition.