EAC’s Brian Newby Sued for Citizenship Form Decision

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U.S. Election Assistance Commission Executive Director Brian D. Newby’s action to allow three states to require documentary proof of citizenship on the federal voter registration form is illegal, argued the League of Women Voters of the United States, along with its Alabama, Georgia, and Kansas state Leagues, and others in a suit filed today in federal court.

Civil rights groups the Georgia NAACP, the Georgia Coalition for the People’s Agenda, and Project Vote, along with Marvin Brown and JoAnn Brown, also join the suit against the U.S. Election Assistance Commission (EAC).

“Voters should not have to face an obstacle course in order to participate in our democracy,” said Elisabeth MacNamara, national League president. “We had hoped that a reconstituted EAC would focus on improving election administration. This action by the executive director would make the election system worse. His action challenges the impartiality of the Commission.”

In 2013, the Supreme Court ruled that Arizona could not require documentary proof of citizenship on the federal registration form without EAC approval. Kansas implemented a law similar to Arizona’s the same year, and both states put proof of citizenship requirements into effect for voters using their state forms. Subsequently, the EAC and a federal court ruled it invalid for the federal form. Alabama and Georgia, which passed similar provisions in 2011 and 2009, respectively, had not implemented their laws. Research shows 7 percent of voters do not have documentary proof of citizenship, and tens of thousands of Kansans have been blocked from registering to vote in the state.

On January 29, 2016, Newby sent letters to the secretaries of state of Alabama, Georgia, and Kansas stating, without further explanation, that he would allow the three states to require citizenship documents for applicants using the federal registration form. If the documents, such as birth certificates or passports, are not provided, Americans will be denied the fundamental right to vote. The federal form is designed to guarantee a “simple means of registering to vote,” and already requires applicants to swear that they are U.S. citizens under penalty of perjury.

The executive director did not have authority to allow the three states to enforce documentary proof of citizenship requirements on the federal form, and doing so violated both EAC policy and federal law, according to a complaint submitted today by the Brennan Center for Justice at NYU School of Law with pro bono counsel at Stroock & Stroock & Lavan LLP; the Lawyers’ Committee for Civil Rights Under Law and the American Civil Liberties Union with pro bono counsel Steptoe & Johnson LLP; and Project Vote with pro bono counsel Arnold & Porter LLP.

Documentary proof of citizenship requirements undermine the groups’ efforts to increase civic participation and make it more difficult for individuals to vote, according to the court filing.

“This change was unauthorized and illegal, and is hugely detrimental to voters in Alabama, Georgia, and Kansas,” said Wendy Weiser, director of the Brennan Center’s Democracy program and representation for the Leagues in this case. “With presidential primaries fast approaching, these citizens deserve clarity on how — or if — they can register to vote. This will bring unneeded confusion and uncertainty during this presidential election year.”

“Stroock is proud to be part of the team challenging this highly troubling move, which would implement unnecessary requirements already ruled illegal by a federal court and the Election Assistance Commission itself,” said Michael Keats of Stroock & Stroock & Lavan LLP, which also represents the Leagues. “We are confident this unlawful action will not be allowed to stand.”

“Documentary proof of citizenship requirements have caused havoc for Kansas elections,” said Marge Ahrens, co-president of the Kansas League. “Already, the League is scrambling to help the tens of thousands of eligible Kansans caught up in this ill-advised regulation, and complicating the federal form in this manner will make the problem even worse.”

“Making eligible Alabamians show citizenship documents when registering to vote would seriously undercut our efforts to sign up voters,” said Anne Permaloff, president of the Alabama League. “Such an abrupt change would also interfere with our efforts to educate the electorate on how to navigate existing obstacles to voting, which are already significant.”

“We are concerned this change will further complicate what should be a straightforward process,” said Elizabeth Poythress, president of the Georgia League. “This additional burden on the voter registration process is unnecessary, unreasonable, and could effectively deny the right to vote to thousands of Georgia citizens who are otherwise eligible and entitled by law to vote.”

“We have successfully litigated two cases where we defeated attempts to require unnecessary and burdensome proof of citizenship for Federal Form applicants,” stated Jon Greenbaum, chief counsel for the Lawyers’ Committee for Civil Rights Under Law. “We expect to prevail a third time in this case.”

“As an organization that has been registering citizens to vote for over 25 years, it is important that barriers to citizen participation be removed,” said Helen Butler, Executive Director of the Georgia Coalition for the Peoples’ Agenda. “We believe the requirement to provide proof of citizenship to register to vote is an unnecessary barrier, especially for communities of color.”

“This is a part of our ongoing post-Shelby election administration monitoring across Georgia,” said Francys Johnson, Statesboro civil rights attorney and Georgia NAACP state president. “This case is illustrious of the insidious tricks, subterfuge, and attacks eviscerating the gains achieved under the VRA and the NVRA. The NAACP will mortgage every asset we have to defend the unfettered access to the ballot. It was paid for with the blood, sweat and tears of our ancestors — it’s sacred.”

“Brian Newby’s decision to unilaterally change the instructions on the federal form to add new hurdles to voter registration is an outrage. He did so without legal authority, without public notice, and in direct opposition to the Election Assistance Commission’s repeated rejection of such changes. His abuse of power is unacceptable and illegal,” said Dale Ho, director of the ACLU’s Voting Rights Project.

“Mr. Newby’s decision is an abrupt and outrageous reversal of the EAC’s previous position, which was already upheld by a federal appeals court,” said Michelle Kanter Cohen, election counsel for Project Vote. “We will continue to fight against documentary proof of citizenship requirements, which are designed to cripple community voter registration drives and limit who gets to have a say in our democracy.”

The suit is brought in response to Executive Director Newby’s sudden and unexplained decision to allow three states to require applicants using the federal registration form to show documents proving their citizenship.

Nearly identical requests from Arizona and Kansas have already been rejected by the EAC multiple times. Last June, the U.S. Supreme Court turned down a petition from Arizona and Kansas to hear Kobach v. United States Election Assistance Commission, thereby letting stand a 10th Circuit ruling that the states may not force applicants using the federal voter registration form to show documents.

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