Why did the federal government just give Kansas the go-ahead to require proof-of-citizenship for voter registration?

The Election Assistance Commission (EAC) announced earlier this week that voters in Kansas will now have to provide “a document, or copy thereof, demonstrating United States citizenship within 90 days of filling out” their voter registration form in order to vote in federal elections. Kansas already requires proof of citizenship for state and local elections.

This is a bizarre reversal, given that Kansas has consistently lost court battles — with the EAC! — in an attempt to have this very requirement added to their federal voter registration forms. Seemingly just because the state asked nicely. As ProjectVote notes, there was no public comment or review in advance of the decision; the EAC’s letter simply references a request that the Kansas Secretary of State’s office made in November.

Kris Kobach, via Wikimedia Commons

Kris Kobach, via Wikimedia Commons

The issue goes back to 2014, when a federal appeals court ruled that Kansas and Arizona could not require proof of citizenship for people registering to vote in federal elections. The National Voter Registration Act (NVRA) prohibits states from issuing such requirements, and Kansas Secretary of State Kris Kobach was unable to provide “substantial evidence of noncitizens registering to vote using the Federal Form,” which would be the only way to establish a legitimate state interest that could override the NVRA.

Kansas and Arizona appealed that decision up to the Supreme Court, which effectively ruled against them when it declined to hear the case.

In theory, the Supreme Court’s refusal to hear the case posed bureaucratic issues for the states, which are still allowed to require proof of citizenship for people who wish to register to vote in state and local elections and could therefore keep a separate list of “federal-only” voters. In practice, Kansas tried to simply remove these “federal-only” voters from the rolls altogether, since keeping two separate lists was apparently too difficult.

This prompted two would-be voters who were affected by the voter purge to sue the state, claiming (fairly straightforwardly) that the state was illegally denying them the right to vote in federal elections. Kobach responded by registering the two plaintiffs to vote, showing that the bureaucratic difficulty he’s complaining about doesn’t actually exist. Or, rather, that you can register to vote in Kansas without proof of citizenship if you sue the state, which would seem to be an even bigger bureaucratic hurdle than maintaining separate voter rolls.

At the end of the day, the NVRA bars states from requiring proof of citizenship for voter registration, and every court that has weighed in on the issue has made it clear that what Kansas is doing isn’t allowed. As of right now, the EAC has given no explanation for why they granted the state’s wish and added citizenship requirements to their federal voter registration forms, erecting an unnecessary and almost-certainly illegal hurdle for would-be voters.

Expect this move to be challenged in court.


Jon Green graduated from Kenyon College with a B.A. in Political Science and high honors in Political Cognition. He worked as a field organizer for Congressman Tom Perriello in 2010 and a Regional Field Director for President Obama's re-election campaign in 2012. Jon writes on a number of topics, but pays especially close attention to elections, religion and political cognition. Follow him on Twitter at @_Jon_Green, and on Google+. .

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  • TellMeImDreaming

    A Republican abused his offices powers for partisan gain. Republicans pledge allegiance to White Supremacy, money, guns, and Jesus. In that order.

  • It’s another care where the center has been forced so far right to survive there is no center left.

  • Moderator3

    Terms of service? Each blog decides who’s a troll.

  • kramartini

    The proof of citizenship requirement passed by 111-11 in the Kansas House of Representatives and by 36-3 in the Kansas State Senate. That is over 90% of each house, and included over 70% of the Democrats in each house.

    This is hardly an effort of the Republican fringe…

  • kramartini

    I assume that your quotation is from the Supreme Court in Arizona v. Inter-Tribal Council et al. However, if you read further, the Supreme Court also says:

    “Section 1973gg–7(b)(1) permits the EAC to include on the Federal Form information “necessary to enable the appropriate State election official to assess the eligibility of the applicant.” That validly conferred discretionary executive authority is properly exercised (as the Government has proposed) to require the inclusion of Arizona’s concrete-evidence requirement if such evidence is necessary to enable Arizona to enforce its citizenship qualification.
    The NVRA permits a State to request the EAC to include state specific
    instructions on the Federal Form.”

    Thus, the Supreme Court has found that the EAC has broad discretion as to whether to include the state-specific instruction. The Supreme Court would not force the EAC to allow an instruction in a case where the EAC found that the instruction was unnecessary, but has not said that the EAC is forbidden to issue an instruction where the EAC finds that it is necessary…

  • kramartini

    I’m sorry, but is there something in my posts that violates your terms of service? (Maybe the CAPS could be seen as yelling, but I don’t think my use of them is excessive.)

  • Moderator3

    It’s beginning to look like that.

  • The_Fixer

    Well, the Supreme Court held that the proof of citizenship requirement ran counter to the NVRA. The provision regarding citizenship in the NVRA says that a citizen must affirm, under penalty of perjury, that he or she is a citizen. There is no provision to provide documentation. Wikipedia breaks it down here.

    The Supreme Court specifically cited the language of the NVRA regarding citizenship:

    The NVRA requires States to “accept and use” a uniform federal form to register voters for federal elections. 42 U. S. C. §1973gg–4(a)(1). That “Federal Form,” developed by the federal Election Assistance Commission (EAC), requires only that an applicant affirm, under penalty of perjury, that he is a citizen.

    The Supreme Court’s ruling is consistent with most lower court rulings on the subject. The law is pretty clear in its language, and the Supreme Court validated an interpretation that says no proof of citizenship is required to be presented when registering to vote. That’s the way the process works.

    If you want me to post the entire NVRA for people to wade through, I am afraid that it won’t come to pass. Cite me the language in the NVRA that says proof of citizenship is required. The Supreme Court couldn’t find it. I do not think that you can.

  • 2karmanot

    troll

  • kramartini

    Actually, if you are saying that the language in a statute is crystal clear, then it is up to you to cite the language supporting your assertion. That is, the readers should not have to do YOUR research for YOU.
    Note that story cited by The_Fixer quotes the 10th Circuit as saying that “the EAC is not compulsorily mandated to approve state-requested changes to the Federal Form.” It does not say that the EAC could not choose to approve the change, only that it cannot be forced to do so.
    So, once again, can you find anywhere in the NVRA that the EAC is forbidden to grant the Kansas request for instructions?

  • kramartini

    Your link is to a story about a court decision, not to the NVRA. And that decision held that the EAC couldn’t be forced to include state-specific instructions but rather that it had discretion not to include those instructions. But the decision left open the possibility that the EAC could exercise its discretion to include those instructions.

  • I shouldn’t have to do your research for you. Luckily my friend The Fixer was more charitable towards your laziness.

  • The_Fixer

    Looky here.

  • Republicans are cowards, afraid of a level playing field in elections so they cheat. they have to cheat to win because their ideas are unpopular across the board and day by day their ranks are shrinking. An intelligent person would take a look at what they’re doing and just figure out a way to make what they’re doing more appealing to more people like creating policy that works for the many instead of the elite few but the spoiled children in the GOP just get mad and do everything they can to keep people from voting instead.

  • kramartini

    Where does the NVRA say that proof of citizenship is not required to vote?

  • kramartini

    Observing events in Kansas demonstrates the good faith of Scretary of State Kobach and the bad faith of his opponents.

    Consider that the lead Plaintiff suing to overturn the proof of citizenship requirement (a Mr. Belenky) possesses a valid passport, but simply refuses to show it just so he could be eligible to file a lawsuit.

    The Secretary of State’s office responded by registering him anyway (after taking affirmative steps to verify his citizenship), demonstrating that Kobach’s goal is to register all citizen voters (but not non-citizens).

  • hiker_sf

    If you like the way things are now, vote for Clinton.

  • Quilla

    Follow the money.

  • What. The. Hell? How the f*ck can this be allowed when the language of the NVRA is crystal clear? Proof of citizenship shall not be required when registering to vote.

    The law is clear. The court rulings are clear. How can the EAC simply overrule all that?

  • Butch1

    Simply, because it is run by the 1% and they do not want the people voting, if possible at all.

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