Big News from Federal Court: Republican States May Soon Demand Proof of Citizenship for Voting in Federal Elections

Today a federal court decided Kobach v. United States Election Assistance Commission.The upshot of this opinion, if it stands on appeal, is that states with Republican legislatures and/or Republican chief election officials are likely to require documentary proof of citizenship for voting, making it harder for Democrats to pursue a relatively simple method of voter registration.

The case is complicated and has a complex history, but here are the basics.

In 1993, Congress passed the National Voter Registration Act (or “motor voter”), which makes a number of changes at issue in federal elections. Among other things the law requires that states must accept from voters voter registrations submitted on a federal form for voting in congressional elections. Preparing this form used to be the responsibility of the Federal Election Commission, but when Congress created the U.S. Election Assistance Commission as part of its Help America Vote Act after the 2000 contested presidential election, it shifted responsibility for preparing the form to the EAC. The federal form approved by the EAC is a relatively simple form, and those who register voters like to use it for voter registration not only because it is easy, but because it is uniform across the country. Democratic-aligned groups like the federal form a lot.

Arizona had been fighting with the EAC for a while over whether the federal form has to require citizenship information for those who vote to register in Arizona. The EAC did not require such information (in fact deadlocking on the question a while back, in a story I tell in The Voting Wars.)  The dispute with Arizona eventually made it to the Supreme Court, which issued an opinion last year in Arizona v. Inter-Tribal Council. In the case, the Supreme Court held that under the NVRA Arizona had to accept the federal form for voter registration, even without a proof of citizenship requirement.

While some promoted this opinion as a big victory for the federal government, I did not see it this way. The opinion by Justice Scalia, joined by the liberal Justices and others, contained a path for Arizona to get the case reversed.  I wrote The Supreme Court Gives States New Weapons in the Voting Wars, Daily Beast, June 17, 2013 and Are the Liberal Justices Savvy or Suckers? They are playing to beat John Roberts at his long game, Slate, July 1, 2013, expressing concerns about this case.

Here’s the issue. Inter-Tribal says that the federal government has plenary power to set the manner of conducting federal elections. But it also says that states have the power to set voter qualifications, and suggests that Congress cannot set a manner for voting in federal elections which deprives states of the ability to confirm that voters meet the state’s qualifications. Justice Scalia, for the majority, suggested that Arizona sue the EAC to get it to either change the federal form to require proof of citizenship for Arizona or get a court order for the EAC to do so.

Arizona, joined by Kansas, brought this case. The case is complicated by the fact that due to a dispute between Democrats and Republicans on the EAC, there are NO commissioners on the EAC. Justice Scalia noted the “nice question” of how the EAC is supposed to respond when it has no commissioners.  In the lawsuit, the Executive Director of the EAC, without any commissioners, issued an opinion rejecting Arizona’s request to add citizenship information.

In today’s decision, the federal district court makes three essential moves.

1. The judge expresses doubt, without resolving the question, whether the Executive Director of the EAC had the authority to decide this question.  The court said it was not necessary to resolve the question because even if the EAC had a full set of commissioners and voted 4-0 to reject Arizona’s request, the EAC would still lose for other reasons.

2. The judge expresses doubt, without resolving the question, whether Congress would have the authority in the NVRA to pass a law about voter registration which would block states from collecting information, such as citizenship information, necessary to verify voter qualifications. Again, it said it did not reach the issue.

3. The judge concludes that Congress in the NVRA did not expressly preempt states from requiring citizenship information (if it did, it would raise serious constitutional questions about the NVRA). In the absence of express preemption, and in light of the doubtful constitutional power to prevent states from collecting this information, the EAC was without power to deny Arizona and Kansas’s request to include the information on the federal form.

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I do not know how this case will fare as it works its way up on appeal.  I can see the arguments on both sides here—but this is exactly the path I feared after Inter Tribal. In the meantime, in states which impose citizenship requirements, the streamlined path of voter registration just got a whole less streamlined.

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