By “Kobach,” I mean the Kobach v. EAC case in which the Tenth Circuit heard oral argument Monday – rather than its lead plaintiff, Kansas’ controversial Secretary of State Kris Kobach, who argued the position of his state and the State of Arizona. This post discusses what’s at issue in the case, where the district court went wrong, and what the Tenth Circuit should do. Kobach involves a narrow but important issue, left unresolved after the U.S. Supreme Court’s decision last year in Arizona v. Inter Tribal Council of Arizona. That case involved Arizona’s attempt to impose a proof-of-citizenship requirement for voter registration, an issue that has been percolating for many years. Arizona law requires would-be voters to provide documents proving their citizenship when they register, documents that some eligible citizens don’t have. But the National Voter Registration Act (NVRA) requires states to “accept and use” the national voter registration form, commonly known as the “federal form.” And that form’s instructions don’t require documentary proof of citizenship. In Arizona, the Supreme Court said that states must register voters who used the federal form, even without these documents. But the Court allowed Arizona to ask the U.S. Election Assistance Commission (EAC) to add the state’s proof-of-citizenship requirement to the federal form. That’s exactly what Arizona, along with Kansas, sought to do. But there’s a problem. The EAC had no sitting commissioners – hasn’t had any for years, in fact, due to gridlock in Congress. With no Commissioners to vote on the states’ requests, they went to federal court to force the commissioner-less EAC to incorporate their proof-of-citizenship requirements on the federal form’s instructions.
While the Supreme Court said that Arizona may ask the EAC to change the federal form, it didn’t say that the EAC must grant the state’s request. The central issue in Kobach is whether and when state requests to add proof-of-citizenship requirements to the federal form must be granted.
Arizona and Kansas won in the lower court. The district court in Kobach first directed the EAC to make a decision on Arizona’s and Kansas’ requests, even without commissioners. EAC’s staff – specifically its acting executive director – complied with this order but denied the requests, concluding that the federal form shouldn’t be modified to add the states’ citizenship requirements. The district court then concluded that the EAC (staff) was wrong to deny Arizona’s and Kansas’ requests and that the states’ proof-of-citizenship requirements must be added to the federal form instructions.
Full Article: What’s the Matter with Kobach? | Election Law Blog.