Breaking: DC Circuit Reverses in Kobach-EAC Proof of Citizenship Voting Case

Acting very quickly after oral argument, the United States Court of Appeals for the DC Circuit has issued this order preliminarily enjoining changing the federal form to allow Kansas, Alabama, and Georgia to require documentary proof of citizenship if registering to vote using a federal voter registration form.

The vote was 2-1, with senior Judge Randolph dissenting.

The ruling is only on the request for a preliminary injunction. There can still be a full hearing on the merits.

The upshot is that for this election, the federal form cannot include a state request for proof of citizenship documentation before voting. That is good news for voters, because it will be easier to register and vote in these states. And it won’t harm voters or the state, because the amount of non-citizen voting is quite small.

Of course, Kobach may try to go to the Supreme Court to reverse this for this election, and he well might, but good luck trying to find a fifth vote. This shows that once again, with an 8-Justice deadlocked SCOTUS, the federal courts of appeal are in charge. (There is also litigation in the 10th Circuit and in Kansas state court over related issues, both of which could be resolved within weeks.)

Here’s the unusual basis for the lawsuit, according to a release from the plaintiffs:

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.

And the case was super-unusual as litigated, because the federal government did not back the EAC, and Kris Kobach (the Kansas SOS behind these shenanigans) argued the case in court. See this Josh Gerstein report.

[This post has been updated.]


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