The timing of this action is a little curious, given the prospect of renewed partisan warfare over proof-of-citizenship just as the EAC is making progress on other fronts like voting technology and election preparedness. It also isn’t clear whether this action is an administrative matter solely within the purview of the executive director or whether it requires a vote of the Commission as a change of policy. [The Election Law Blog’s Rick Hasen asks: Has the EAC Capitulated to Kansas on Proof of Citizenship for Voting?]
What is clear is that the new instructions make the issue of proof-of-citizenship less clear, especially since the courts have ruled (and SCOTUS has declined to weigh in) that proof-of-citizenship is unenforceable. While it is in fact true that the federal form now reflects the letter of the law in Kansas and other states, I worry that language on the form (and on the website) indicating that voters “must” follow those instructions is at best misleading and at worst contrary to federal and state court rulings. The executive director may not have the authority to add a suitable disclaimer, but perhaps the Commissioners do. This kind of uncertainty is always problematic – but especially in a high-stakes presidential election year. Here’s hoping it gets clarified soon.
I didn’t think this issue could get any more complicated or less clear, but I was wrong; I’ll be interested to see what happens next.