Category Archives: NVRA (motor voter)

Weinstein-Tull on Federal Election Administration

Justin Weinstein-Tull, Federal Election Administration Laws (forthcoming, Oxford Handbook of American Election Law):

Although states and local governments administer elections in the United States, the federal government has also enacted laws that regulate election administration. Most prominent among these laws are the National Voter Registration Act, the Uniformed and Overseas Citizens Absentee Voting Act, and the Help America Vote Act. With its recent attempt to enact the For the People Act, Congress has demonstrated an interest in more aggressively regulating election administration.

This chapter discusses both the promise and the challenges of federal election administration laws. It discusses the good that these laws can accomplish, but also the difficulties enforcing them. It explains how federal election administration laws fit into voting rights scholarship, and suggests avenues for future research. Building on these insights, it concludes by suggesting novel ways that the federal government could effectively administer elections while retaining the benefits of local election administration.

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“A GOP claim that Michigan purposely tried to encourage voter fraud doesn’t fit with facts”

News from the States:

Republicans at a recent congressional hearing accused Michigan’s chief election official of deliberately leaving tens of thousands of dead voters on the rolls in order to encourage illegal voting.

Even at a time of intense partisan conflict over election policies, it was a strikingly direct charge against a sitting official — and one made not by a Twitter activist or even on the campaign trail, but before Congress. And it comes at a time when election officials are already facing a wave of harassment and threats stemming from false claims about voting.

But a closer look at the facts makes clear the allegation that Michigan Secretary of State Jocelyn Benson knowingly kept dead people on the rolls to allow for fraud deserves extreme skepticism.

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11th Circuit finds Alabama’s felon disenfranchisement law passes constitutional scrutiny

From an opinion by Judge Tjoflat, joined by Judge Moody (sitting by designation) in Thompson v. Secretary of State for the State of Alabama (lightly edited):

Greater Birmingham Ministries, an Alabamian non-profit organization dedicated to aiding low-income individuals, and several Alabamian felons appeal the District Court for the Middle District of Alabama’s summary judgment denying their Equal Protection Clause, U.S. Const. amend. XIV, § 1, challenge to Amendment 579 of the Alabama state constitution, their Ex Post Facto Clause, U.S. Const. art. I, § 9, cl. 3, challenge to Amendment 579’s disenfranchisement provisions, and their National Voting Registration Act of 1993 (“NVRA”), 52 U.S.C. § 20501 et seq., challenge to the format of Alabama’s mail voting registration form. Because we hold that (1) Amendment 579 successfully dissipated any taint from the racially discriminatory motives behind the 1901 Alabama constitution; (2) Amendment 579 does not impose punishment for purposes of the Ex Post Facto Clause; and (3) Alabama’s mail voting registration form complies with the NVRA, we affirm.

Judge Rosenbaum concurred in part and dissented in part in a longer opinion, which opens:

Deceiving an elector in preparation of her ballot. Altering another person’s ballot. Failing to count legally cast absentee votes. Illegally voting more than once in an election (second violation). Willfully and intentionally signing the name of another elector in a poll book. Bribery of public servants. And perjury.

Perhaps this recitation sounds like a list of felonies that would disqualify an Alabamian from voting under Amendment 579 to Alabama’s constitution—Alabama’s felon-disenfranchisement provision. Nope. Those convicted of any of these voting-fraud-related felonies are A-okay, good to go when it comes to voting in Alabama. Alabama exempts them from its felon-disenfranchisement provision, Amendment 579. Under that provision, only other felons—those convicted of felony crimes that Alabama says are crimes of “moral turpitude”—can’t vote.

Even worse, in the nearly thirty years since Alabama amended its felon-disenfranchisement provision, Alabama has de-fined the phrase “moral turpitude” in contradictory or non-uni-form ways. At one point, Alabama even allowed each local registrar to interpret the term for herself. In other words, when Alabama precluded those convicted of felony crimes of “moral turpitude” from voting, it may as well have excluded those convicted of “whatever felonies Alabama (or any of its local registrars) at any point in the future might say disqualify a voter,” as Alabama had no definition of the phrase “moral turpitude” in mind.

All of this raises the question: just what was Alabama trying to accomplish with its felon-disenfranchisement provision?

. . .

Indeed, when, as here, the amended law does nothing to advance its stated purpose, it cannot cleanse the taint of its discriminatory origins. For that reason, if I were not bound by our precedent, I would hold that Alabama’s felon-disenfranchisement provision violates the Equal Protection Clause. But since I am bound, I cannot and must instead conclude that, under our case law, the provision does not violate the Equal Protection Clause.

That said, though, Alabama’s felon-disenfranchisement statute and its voter registration form do violate the Ex Post Facto Clause and the National Voter Registration Act, respectively. So I would reverse the district court’s denial of those challenges.

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Mitchell on gov’t agencies at the RNC donor retreat

As this blog noted, Cleta Mitchell was invited to give a “special legal presentation” to a recent RNC donor retreat — either because of or despite her role in proceedings attempting to overturn the 2020 election. 

There has already been widespread reporting on Mitchell’s comments on student voting.  There’s a lot more there there in another round of audio posted on Friday, including claims about litigation that she voluntarily dismissed before it could draw sanctions, and calls for tax-deductible contributions to her nonpartisan 501(c)(3) nonprofit less than 60 seconds after criticizing Alaska’s ranked-choice voting system because of its perceived partisan electoral impact.

In this (longish: apologies) post, though, I want to briefly address two of her claims concerning government entities that aren’t in a position to fight back.  One claim is almost certainly false and the other is false on its face.  To be abundantly clear, I don’t speak for either government entity.  But in an era of attack on institutions, it’s (still) important to have actual facts out there.

First: the Census.  Mitchell claims that the Census Bureau “literally manipulated” the apportionment system to give seats to blue states and take seats from red states, and admitted their “mistake” last May.  What she seems to be talking about is post-enumeration analysis that Census has run in some fashion every decade since 1950, attempting to assess what the decennial Census got right and where there’s room for improvement.  These aren’t corrections to the decennial Census, which is, by law, not correctible for apportionment purposes using statistical samples; instead, it’s an after-action review to help prepare for surveys to come and for the next enumeration.  In May of 2022, Census released its post-enumeration analysis for the 2020 Census; the assessments of error are themselves estimates and subject to error, but Census’s best calculation was that there were likely undercounts in six states (AR, FL, IL, MS, TN, and TX) and overcounts in eight (DE, HI, MA, MN, NY, OH, RI, UT). 

It is true that Minnesota very narrowly gained a seat in apportionment (by just 26 people), and that Florida and Texas results did not measure up to their expected count.  It is not true that Minnesota’s gain is straightforwardly Florida or Texas’s loss: that’s not how the formula for apportioning congressional seats works.  (Indeed, if anything, that next seat would likely have gone to even-bluer New York, which dropped a seat it would have kept with 89 more individuals.)  

The casual charge of partisan manipulation doesn’t fit the facts.  If the over- and undercounts revealed by the post-enumeration analysis were the result of partisan manipulation, that conspiracy would have to account for at least five factors: 1) the fact that the data for the 2020 Census were collected and collated during the Trump Administration by the same career officials who then reported them the next year, 2) the fact that the alleged conspirators transparently published and voluntarily released their self-reflective analysis (in line with practice for the last 70 years), violating Bell’s First Law, 3) the fact that deep-blue Illinois was undercounted and deep red Ohio and Utah were overcounted, 4) the fact that Latino, Black, and Native American populations were significantly undercounted and non-Hispanic whites were significantly overcounted, and 5) the fact that Montana was also on the knife’s edge to stay pat with one seat in Congress but actually gained another by a hair, while New York lost a seat it would have kept with just 89 more people.  None of this makes sense in the world of the conspiracy.

Fortunately, there are simpler explanations for the under- and overcounts.  First and foremost, the pandemic threw the biggest wrench in a century into Census operations, particularly in states like New York hammered by the front wave of the virus on Census Day; some significant degree of error is to be expected from that fact alone, and the fact that 14 states had under- or overcounts is far less surprising than the fact that 36 states did not.  Second, in the middle of a prominent public campaign around immigration enforcement, the Trump Administration’s yearlong pursuit of a citizenship question on the decennial Census form, though ultimately overturned by the courts, may still have succeeded to some degree in dissuading the participation of a vulnerable population; it was entirely predictable that states comparatively less responsive to significant immigrant communities would see an undercount. Third, some states chose to invest heavily, in partnerships or funding or both, in ensuring a complete count — and some states, like Texas and Florida, did not … or invested only at the very last minute.  It’s not hard to imagine that investment (or its absence) had consequences, particularly for an undercount.

It’s not possible to know which of these factors — or others not dependent on allegations of malfeasance — actually contributed to the under- and over-counts in what degree.  But they’re all more facially plausible sources of deviation than the unsubstantiated claims of rigging the system.  If Mitchell has evidence that the Census Bureau manipulated the count, I’d love to see that evidence.

Second: the Department of Education.  Mitchell claims that the Biden Administration’s executive order on promoting access to voting spurred ED to issue guidance that every college and university receiving federal funds has to “have a voter registration as part of the student enrollment package.  They have to have a voter registration form as part of registering for classes.  If you apply for student financial aid, you have to fill out a voter registration form.”

Look, I think Mitchell’s idea would make great policy.  Giving eligible Americans more opportunities where they can conveniently choose to register to vote or update their registration is in my view a good thing; providing these opportunities when Americans are otherwise filling out paperwork so they can do two things at one time more efficiently is in my view a good thing; increasing the routinization of registration at institutions so that local officials get reliable and updated information more effectively, to help keep the rolls cleaner, is in my view a good thing.  At one point in her presentation, Mitchell decried hordes of students lining up for same-day registration in Wisconsin, and the single best way to avoid those lines is to get the eligible students registered up front, when they’re enrolling or registering for classes or applying for aid.

But while I think it’s sound policy, and applaud steps in this direction — like in Maine, Ohio, and Tennessee, where state law requires public high schools to facilitate voter registration for eligible students — it’s not currently a federal requirement.  Which may be why, despite Mitchell’s claim, ED didn’t actually discuss any such mandate in its guidance.

Here’s the guidance document, from April 21, 2022.  There’s no requirement in the document that supports Mitchell’s assertion.  Indeed, the only mandate in the letter is ED’s quoted reminder of a federal statute: postsecondary institutions in states subject to the NVRA are required to “make a good faith effort to distribute a mail voter registration form, requested and received from the State, to each student enrolled in a degree or certificate program and physically in attendance at the institution, and to make such forms widely available to students at the institution.”  That’s verbatim from 20 USC 1094(a)(23)(A), and it’s been federal law for 25 years now.  The guidance also notes that the institution can send an electronic registration form or a link to an electronic registration form instead of a paper form, which is just 20 USC 1094(a)(23)(D), with a 15-year history.

That’s it.  There’s no broader boogeyman in the mandate ED posted than a recitation of words in the U.S. Code for decades.  Just so we’re all working from the same set of facts.

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Breaking–District Court preliminarily enjoins parts new Arizona voter law

The U.S. District Court for Arizona has preliminarily enjoined two key provisions of Arizona’s recent effort to regulate voter registration. Importantly, it found the statute’s provision seeking to criminalize efforts to register out-of-state voters is likely unconstitutionally vague and further that the registration cancellation provisions likely violate the National Voter Registration Act.

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“South Dakota is not following federal voter registration laws, judge rules”

Sioux Falls Argus Leader:

A federal judge ruled Thursday that the South Dakota Secretary of State’s Office is not following federal laws requiring state agencies to make it easier to register to vote.

Judge Lawrence Piersol, of the United States District Court for the District of South Dakota, issued a wide-ranging opinion that sided with two South Dakota tribes, the Rosebud Sioux and the Oglala Sioux.

The tribes brought suit in 2020, arguing that the Secretary of State’s Office was not adequately addressing federal law. The National Voter Registration Act requires state agencies to help voters register to vote when they interact with government agencies for other services.

For example, voter registration opportunities must be provided under the act when people apply for drivers’ licenses, or apply for public assistance. When a person submits a change-of-address form for a driver’s license, the act provides that it should also serve as a change of address for voter registrations, at least when it comes to federal elections.

Licensing and public benefits are under the auspices of the Department of Public Safety and the Department of Social Services. Piersol found that the Secretary of State’s Office was not providing enough oversight to ensure those offices were fulfilling their responsibility under the act.

Piersol also found that the Department of Public Safety was responsible for transmitting voter registrations to the county auditor, but numerous errors were stopping that process from happening. Piersol also ruled that when the Department of Public Safety contracts with other government agencies to provide licensing services, the department is still obligated to comply with federal voter registration requirements. Such so-called “issue sites” include the office in Dupree, South Dakota in the Cheyenne River Sioux Reservation.

You can find the court’s order at this link.

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How to guarantee the right to cast a ballot?

I have seen a lot a skepticism lately about relying on courts to protect the equal right of eligible voters to participate in an election by casting a ballot and having it counted accurately. But unless Congress is going to exercise its constitutional power to create an entirely new federal bureau of election administration to run congressional elections (and states would willingly let this new federal bureau administer other elections, like gubernatorial and the popular vote to appoint presidential electors), what’s the alternative?

How can we tell if every eligible voter who wants to cast a ballot is meaningfully able to do so in a specific election (like the upcoming midterms)–and thus is not being denied their fundamental right to vote? First, assuming a state does not have same-day registration, the voter must have an adequate opportunity to register in advance. While same-day registration certainly makes access to the ballot easier, I would not argue that the absence of same-day registration is a denial of the right to vote, as long as the state provides its eligible citizens with a genuine opportunity to register in advance. If state officials failed to do that, in violation of existing federal law, it would be necessary to turn to the courts to enforce that right. (And even if federal law were to require same-day registration nationwide, it would be necessary to rely on federal-court enforcement of that right in the event of noncompliance, deliberate or otherwise, by state and local election officials.)

Assuming eligible citizens have a meaningful opportunity to register in advance, what about their opportunity to cast a ballot? The essential role of provisional ballots, as required by HAVA, should not be overlooked in this respect. All voters who believe themselves to be registered have an existing federal-law right to cast a provisional ballot. I worry about long lines at the polls as a practical obstacle to voters wishing to cast a ballot, including a provisional one if necessary, but voters who want to make sure they are not denied their right to vote must insist that they cast at least a provisional ballot and refuse to leave their polling place without being able to do so. If state and local officials fail to comply with this existing federal-law obligation to give a provisional ballot to all voters who request one, it would be necessary to go to court seeking an emergency TRO to make sure these provisional ballots get into voters hands while they remain waiting in line.

Compliance with the existing federal-law obligation to give voters provisional ballots is especially important in a presidential election for this reason: if voters who want to cast a ballot but who are denied the opportunity to cast one and leave their polling places without casting one, there is no possibility of a do-over after Election Day has passed, at least not under existing federal law. Why? Because if the claim is that a state’s popular vote in a presidential election is fundamentally defective because there were a group of voters (say, for example, many in Atlanta) who were denied their right to cast a provisional ballot, then the popular-vote election for the purpose of appointing the state’s electors will have “failed to make a choice on the day prescribed by law” under 3 U.S.C. 2, thereby giving the state’s legislature the right to choose an alternative method of appointing electors (including direct appointment by the legislature itself).

Thus, as we contemplate the possibility of partisan state and local election officials (along with partisan state legislatures) attempting to engineer electoral outcomes in contravention to free and fair elections, including by denying eligible citizens the right to cast a ballot, we ultimately must rely on courts to uphold the law that guarantees the right to cast a ballot. Above all, this includes the key provisions of the federal Help America Vote Act that insist that no voter be turned away from the polls without having a chance to cast a provisional ballot, which must eventually be counted if indeed the voter was registered and eligible to participate in the election as the voter believed. I’m afraid that, as we think about how to safeguard democracy from the very real dangers that exist, we are neglecting the need to remain vigilant about the judicial protection, if necessary, of the essential right to cast a provisional ballot.

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“EXCLUSIVE: Georgia releases list of 102K voter registrations to be canceled”


Secretary of State Brad Raffensperger on Friday made public the names of nearly 102,000 people who are at risk of having their Georgia voter registrations canceled, a warning before they lose their ability to vote next month.

The mass cancellations, called voter “purges” by their critics, target registered voters who moved or didn’t participate in elections for several years.

Fewer voter registrations are being canceled this year than in 2017, when 534,000 were eliminated from Georgia’s voter rolls during the largest removal of registrations in U.S. history. Most of the state’s outdated registrations were already canceled in prior years.

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“For second time, federal judge finds Texas is violating voter registration law”

Texas Tribune:

A persistent Texas voter, twice thwarted when he tried registering to vote while renewing his driver’s license online, has for the second time convinced a federal judge that the state is violating federal law.

In a 68-page ruling Friday, U.S. District Judge Orlando Garcia of San Antonio found that Texas continues to violate the federal National Voter Registration Act by not allowing residents to register to vote when they update their driver’s license information online.

Garcia found that DPS is “legally obligated” to allow voters to simultaneously register to vote with every license renewal or change-of-address application, and ordered the state to set up a “fully operable” online system by Sept. 23. The Texas attorney general’s office did not immediately respond to a request for comment, but the state is likely to appeal the ruling.

It’s the second time Garcia has sided with the voter, former English professor Jarrod Stringer. Garcia’s first ruling was overturned on appeal on a technicality.

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“Federal Court Blocks Indiana Voter Purge Law”


 A federal court has blocked an Indiana law that would have allowed county elections officials to kick voters off the rolls immediately without notice.

The American Civil Liberties Union, ACLU of Indiana, Demos, and the firm Davis Wright Tremaine challenged the law, which sought to circumvent federally mandated safeguards from a state purge process, allowing voters to be purged based solely on second-hand information without notice or an opportunity to correct the record.

Previously in this case, federal courts struck down a virtually identical law that relied on data from the controversial Interstate Voter Registration Crosscheck program. Instead of fixing the problems, Indiana enacted a new law that replicated the same flawed procedures and simply swapped the Crosscheck program with an Indiana-based program called  the Indiana Data Enhancement Association.

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“U.S. Supreme Court asked to rule on Kobach’s signature Kansas voter registration law”

Wichita Eagle:

Kansas will ask the U.S. Supreme Court to rule on a state law championed by former secretary of state Kris Kobach — struck down by lower courts— that requires residents to prove their citizenship when registering to vote.

The request, announced Tuesday morning by Kansas Attorney General Derek Schmidt, sets up a potentially historic showdown over voting rights if the court takes the case, with the justices possibly deciding how far states can go in imposing requirements on would-be voters.

Dale Ho, lead attorney for the American Civil Liberties Union in the case, said he was confident that the plaintiffs would prevail at the Supreme Court— as they had at the district court and appeals level.

“It stopped more than 30,000 Kansans from exercising their right to vote. Kansas’ law has been found to violate federal law multiple times, as well as the United States Constitution,” Ho said.

“It’s sad that the secretary of state and the attorney general of Kansas would seek to resuscitate Kris Kobach’s sorry legacy of voter suppression,” Ho said in a phone call….

Rick Hasen, an election law professor at the University of California, Irvine School of Law, said he was surprised by Kansas’ decision to seek a Supreme Court review of the case.

“The Supreme Court’s rules require it to defer to the factual findings of the trial court, and the the trial court found as a matter of fact that Kobach utterly failed to prove his case that noncitizen voter fraud was a real problem in Kansas. He called it the ‘tip of the iceberg’ but the trial court found it to be an ‘icicle’ made up mostly of administrative error,” Hasen said in a message.

Schwab said judicial review is needed “to provide clarity” on the issue.

“This is a really important appeal. It has consequences for the entire country, so I’m hopeful the Supreme Court will take the case and if they do take the case I am confident they will overturn the 10th circuit,” Kobach said in a phone call Tuesday.

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Breaking: In Major Decision Rejecting Kris Kobach’s Claims of Massive Voter Fraud, Tenth Circuit Unanimously Holds Kansas’s Documentary Proof of Citizenship Requirement to Register to Vote Violates Constitution and Federal Law

In a major ruling, a 10th Circuit panel (consisting of 2 judges, as a third judge on the panel had passed away), a Tenth Circuit panel has held that a Kansas anti-voting law championed by former Secretary of State Kris Kobach violated both the Constitution’s equal protection clause and was preempted by the federal motor-voter law. The law at issue required those who wished to register to vote in Kansas to provide documentary proof of citizenship—such as a birth certificate or naturalization certificate—in order to register to vote. Until the ACLU secured a preliminary injunction against this law, about 30,000 people had their voter registrations suspended and were not allowed to vote in Kansas elections.

I wrote about the trial in this case (then called Fish v. Kobach and now Fish v. Schwab on appeal) in my book, Election Meltdown. I called the case the most important voting trial of the 21st century so far because it was the chance for those like Kobach who claim that voter fraud is a major problem in the United States to prove that in a court of law under the rules of evidence. As I detail in the book, Kobach’s proof was woefully inadequate and his expert witnesses embarassingly bad. Kobach was later sanctioned for how he ran the trial and for misleading the ACLU about the contents of a document he had given to President Trump.

Kobach had claimed that the amount of noncitizen voting was the tip of the iceberg, but the trial court, after an extensive trial where Kobach was given every chance to prove his case, as no more than “an icicle, largely created by confusion and administrative error.”

Today’s 10th circuit opinion agreed that preventing voter fraud is a compelling interest, but that Kansas could not prove its law was necessary to prevent such fraud:

To start, the district court found essentially no evidence that the integrity of Kansas’s electoral process had been threatened, that the registration of ineligible voters had caused voter rolls to be inaccurate, or that voter fraud had occurred. In particular, it found that, “at most, 67 noncitizens registered or attempted to register in Kansas over the last 19 years.” Aplt.’s App., Vol. 47, at 11519. Of these, “[a]t most, 39 noncitizens have found their way onto the Kansas voter rolls in the last 19 years.” Id. at 11520. The Secretary does not argue that these factual findings are clearly erroneous. Thus we are left with this incredibly slight evidence that Kansas’s interest in counting only the votes of eligible voters is under threat. Indeed, even as to those 39 noncitizens who appear on the Kansas voter rolls, the district court effectively found that “administrative anomalies” could account for the presence of many—or perhaps even most—of them there.Id.

Supporting this determination is the fact that Kansas’s voter-registration database included 100 individuals with purported birth dates in the 19th century and 400 individuals with purported birth dates after their date of voter registration. And so it is quite likely that much of this evidence of noncitizen registration is explained by administrative error.

The Secretary also presented the district court with out-of-state evidence about election fraud and noncitizen registration. But the district court concluded that, “looking beyond Kansas, [the Secretary’s] evidence of noncitizen registration at trial was weak.” Id. at 11519. It explained at length why it excluded large portions of the Secretary’s expert testimony and found much of the remaining testimony unpersuasive. Id. (explaining that one of the Secretary’s experts was “credibly dismantled” by the architect of the survey upon which the expert had relied and that the court “d[id] not fully credit” a second expert’s testimony “given its inclusion of misleading and false assertions”). We have no doubt that inaccurate voter registrations exist in our country, see, e.g., Husted v. A. Philip Randolph Inst., — U.S. —-, 138 S. Ct. 1833, 1838 (2018) (“It has been estimated that 24 million voter registrations in the United States—about one in eight—are either invalid or significantly inaccurate.”), but the Secretary fails to connect this generalized information to the DPOC requirement at issue here or to argue that the district court clearly erred in finding that “the trial evidence did not demonstrate the largescale problem urged by [the Secretary].” Aplt.’s App., Vol. 47, at 11520. In light of the significant burden on the right to vote, we thus do not rely on the Secretary’s out-of-state evidence of voter-fraud and nonvoter registration.

I do not know if Kansas will seek en banc review or cert. before the Supreme Court. This law was Kobach’s baby and he’s no longer in office. This would be a terrible record to take up to try to get a reversal because Kobach litigated this case so poorly.

Make no mistake–this is a huge victory. As the 10th circuit noted, unlike voter identification cases where it sometimes has been hard for plaintiffs to prove that the law burdens most voters, this law literally disenfranchised tens of thousands of people. “These factual findings create a fundamental distinction between this case and Crawford: based on an extensive record, the district court here concluded that the Kansas Secretary of State actually denied approximately thirty thousand would-be voters’ registration applications in his implementation of the DPOC requirement, while, in Crawford, the scant evidence before the Court left it with the unenviable task of attempting to estimate the magnitude of the burden on voting rights, largely from untested extra-record sources.”

This is a huge win for voters, and it clears away a law that disenfranchised thousands but prevented no appreciable amount of voter fraud.

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