(CNSNews.com) – The Secretaries of State of Kansas and Arizona are trying to force the federal Election Assistance Commission (EAC) to change federal voter registration forms, which do not require documented proof of U.S. citizenship, to match their state forms, which do.
Their lawsuit against the EAC is scheduled to be heard next week in U.S. District Court in Wichita. (See Kobach, Bennett v EAC.pdf)
Under the National Voter Registration Act of 1993 (NVRA), commonly known as the Motor Voter Act, states must “accept and use” federal voter registration forms for all federal elections. (see NVRA.PDF)
However, the federal forms only require applicants to swear under penalty of perjury that they are U.S. citizens, while state law in both Kansas and Arizona require prospective voters to produce documented proof of U.S. citizenship.
Under the current “bifurcated” arrangement, residents of Kansas and Arizona who have not produced proof of U.S. citizenship are allowed to vote in federal elections, but not in state or local races.
Noting that the states have “the constitutional rights, powers, and privileges of establishing voter qualifications, including voter registration requirements,” Kansas Secretary of State Kris Kobach and Arizona Secretary of State Ken Bennett argue in their lawsuit that “a mere oath without concrete evidence of citizenship …does not suffice to effectuate the State laws of Plaintiffs or enable Plaintiffs to obtain information Plaintiffs deem necessary to assess the eligibility of voter registration applicants and to enforce their voter qualifications.”
The states further argue that the federal form is incompatible with their constitutional authority to determine voter qualifications.
“As applied by the EAC...the NVRA effectively compels Plaintiffs to choose between two options, neither of which Congress has the constitutional authority to enact.
"Either: (1) Plaintiffs must abandon their proof-of-citizenship requirements for Federal Form applicants and allow such applicants to register to vote for federal elections but not state elections; or
“(2) Plaintiffs must abandon their proof-of-citizenship requirements altogether,and allow applicants using any registration form to register to vote for both federal and state elections.”
Both states have taken the first option. But the American Civil Liberties Union (ACLU) filed a lawsuit last month claiming that a two-tier registration system violates voters’ constitutional right to equal protection because it “classifies electors according to their method of registration, then assigns lesser voting rights to some electors who register using the Federal Form.” (See Belenky v. Kobach.pdf)
Kansas has no choice, Kobach told CNSNews.com. “Under current state law, Kansas has to bifurcate unless the state sues the federal government and forces the EAC to change the federal form,” he said, noting that federal and state law both prohibit non-citizens from voting.
“I’m cautiously optimistic,” Kobach said, adding that the lower court is likely to seriously consider a “suggestion” by the U.S. Supreme Court in a June 17 ruling that the states sue the EAC to end the conflict. (See AZ et al v Inter Tribal Council.pdf)
According to a state law that went into effect on January 1, Kansans registering to vote for the first time must submit one of 18 approved documents - including a birth certificate, a consular report of birth abroad, naturalization papers, etc. - proving that they are U.S. citizens. They must also show an approved photo ID when they show up at the polling place,
In 2004, Arizona voters approved Proposition 200, which also requires applicants to “present satisfactory evidence of United States citizenship” when they register to vote and to “present identification when they vote on election day.” The amendment to the state constitution was intended to curtail voter fraud, and has been credited with preventing 20,000 ineligible people from voting.
Complicating matters is the fact that the Kansas/Arizona lawsuit was filed at a time when the EAC is all but moribund, with no sitting commissioners on board since December 2011. On December 11, the Senate Committee on Rules and Administration is scheduled to hear testimony on the stalled nominations of Thomas Hicks and Myrna Perez to the EAC, but even if they are confirmed, two vacancies would still remain.
On July 31, EAC acting executive director Alice Miller sent a letter to Kobach informing him that the agency could not process Kansas’ request to modify the federal voter registration form due to “a lack of a quorum on the commission.”
However, the states’ complaint alleges that in 2006, former EAC executive director Thomas Wilkey unilaterally refused to modify the National Voter Registration form at Arizona’s request without the required vote of at least three commissioners.