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.
Until January. That’s when Brian Newby, the EAC’s executive director, granted permission to Alabama, Georgia and Kansas to require proof of citizenship while using the federal form. Newby‘s decision, which came with little explanation, generated heat. Thomas Hicks, an EAC commissioner, publicly rebuked [PDF] Newby, saying he exceeded his authority and contradicted EAC policy. When civil rights groups sued, the Department of Justice refused to support Newby, siding with the plaintiffs instead and urging a federal judge to block the decision. This left Kris Kobach, the Kansas secretary of state, to defend the EAC in court.
On September 9, the DC Circuit Court of Appeals ruled against [PDF] Kobach and company, ordering the EAC to remove proof-of-citizenship requirements from the federal form. On September 26, the court issued an opinion [PDF] explaining its order. With respect to Newby‘s decision, the court wrote, “it is difficult to imagine a more clear violation of the APA’s requirement that an agency ‘must examine the relevant data and articulate a satisfactory explanation for its action[.]'” The court also rejected the argument that eliminating proof of citizenship would leave states vulnerable to voter fraud.