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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