In a 2-1 split decision, the DC Circuit reversed a district court ruling and allowed a preliminary injunction barring Kansas, Alabama, and Georgia from including a proof of citizenship requirement on federal voter registration forms.
For now, that means voters are on the honor system, with no need to verify that they are eligible U.S. citizens beyond checking a box. From the opinion:
Neither this preliminary injunction nor a final judgment would forbid the Commission from including a proof-of-citizenship requirement if it determined that such a requirement was necessary to “effectuate [the States’] citizenship requirement[s].”
Only four states have laws on the books requiring proof of citizenship before registering voters. Kansas is one of them, and Kansas Secretary of State Kris Kobach is fighting in court to maintain that commonsense safeguard against ineligible non-citizens affecting the outcome of the state’s elections.
“There is a huge potential for aliens’ votes to swing a close election,” Kobach told The Daily Signal in a phone interview. “Even if it’s just a handful of votes, it’s still a huge injustice. Every time an alien votes, it effectively cancels out a vote of a U.S. citizen.”
Plaintiffs in the case, The ACLU, League of Women Voters, et al take the fraud-friendly position that simply signing an affidavit “under penalty of perjury” provides adequate “proof of citizenship” for voter registration purposes – and specifically for voters registering at the DMV. Kobach disagrees.
“If a state wants to ask for proof of citizenship, nothing in the law prevents it,” Kobach said. “The absurdity of the legal argument that the ACLU is advancing is this notion that Congress intended to present a special privilege for people registering to vote at the DMV that other people don’t get to enjoy.”
Obtaining proof of citizenship before registering voters is hardly a new strategy for preventing illegal voting. The 2005 Report of the Commission on Federal Election Reform recommended it (along with photo voter ID): “The right to vote is a vital component of U.S. citizenship, and all states should use their best efforts to obtain proof of citizenship before registering voters.”
“This about the rule of law,” Kobach said. “We have law-breaking when it comes to elections, and solving the problem is not difficult.”
Arguing that states “don’t need to be authorized by the federal government” to set up state and local election process rules, Kansas last week asked the Tenth Circuit Court of Appeals to reinstate its requirement that Kansans provide proof of U.S. citizenship before being registered to vote:
The mandate that Kansans present passports, birth certificates or other proof of citizenship when registering to vote while obtaining driver’s licenses was challenged by a U.S. District Court judge in May.
“Every time a noncitizen votes, it effectively cancels out the vote of a citizen,” Kansas Secretary of State Kris Kobach said in court filings ahead of Tuesday’s oral arguments… “We don’t need to be authorized by the federal government” to set up rules to manage state and local elections.
Ensuring that only eligible citizens are able to vote wasn’t always considered a controversial affront to civil rights, as the ACLU now claims, but a commonsense safeguard.
The 2005 report of the bipartisan Commission on Federal Election Reform included in its recommendations on voter identification: “The right to vote is a vital component of U.S. citizenship, and all states should use their best efforts to obtain proof of citizenship before registering voters.”
Kansas, Alabama and Georgia can demand their residents submit proof of citizenship before signing up to vote even if they’re using the federal government’s registration forms, a judge said Wednesday, delivering a win to states concerned about voter fraud.
The League of Women Voters and the Obama administration had tried to halt the practice, arguing that federal law doesn’t require an extensive citizenship check when people register to vote, and saying the three states were imposing an extra burden on voters.
But Judge Richard J. Leon said that while it may be an inconvenience to require proof of citizenship, and voter registration drives may have to do more work to get folks signed up, it’s not an insurmountable burden — and certainly less so than trying to explain Obamacare.
“The organizational plaintiffs and their members will undoubtedly have to expend some additional time and effort to help individuals,” Judge Leon wrote. “But let’s be candid: doing so pales in comparison to explaining to the average citizen how the [Affordable Care Act] or tax code works!”
The judge rejected plaintiffs’ request for a preliminary injunction.
“Double voting is a serious crime. It undermines the equality of citizens.”
Kansas Secretary of State Kris Kobach’s office has charged three voters in two counties of casting ballots illegally while voting in another state in the same elections, filing the first cases under a new state law giving him the power to prosecute election fraud allegations.
A total of 16 charges were filed against the three accused double-voters for fraud dating back as far as 2010. Kobach says more prosecutions are coming.
“Our republic is based on the principle of one person, one vote,” Kobach said in a brief interview. “Double voting is a serious crime. It undermines the equality of citizens.”
Kansas and Arizona say yes. NRO has a detailed look at the case:
A major voting-law case that the Supreme Court looks likely to take next term, Kobach v. Election Assistance Commission, sets out a dispute between states and the federal government over whether Kansas can require inclusion of a proof-of-citizenship requirement on the National Mail Voter Registration Form. As the name suggests, this form is a single document that can be used nationwide to register to vote, with varying instructions for each state; the Election Assistance Commission (EAC) is a federal agency whose responsibilities include creating and administering this form…
As Kobach states in petitions for Kansas and co-plaintiff Arizona, maintaining confidence in our voter-registration system — in this case, by removing ineligible voters from the voter rolls — is central to the National Voter Registration Act, the 1993 law that created the standard federal registration form. But it’s the law’s other provisions, on expanding ballot access, that seem to get all the attention, and the EAC barely mentioned the NVRA’s election-integrity goals in its 40-page decision denying Kobach’s request.
Kobach argues Supreme Court guidance is needed because the case is of paramount national importance. “It’s a really profoundly important case,” Kobach said. “The founding fathers were emphatic that the states get to decide who is a qualified voter and who is not. It was a critical point in the Constitution that the federal government would have to follow the states on this matter.”
In state houses around the country, legislation is advancing to make elections more secure. In Kansas:
Kansas Secretary of State Kris Kobach expressed Thursday in a Senate Judiciary Committee meeting that hefty fines for voting crime imposed by Senate Bill 34 would greatly deter violators. The bill would also give the state office the authority to prosecute such crimes instead of the county attorneys…
“[T]here are some election crimes you cannot stop by photo ID or proof of citizenship,” Kobach said. “The only way to stop them is to deter them and the only way to deter them is to impose big penalties… and making sure the case is actually being prosecuted.”
“A mere oath of citizenship is not enough.”
In the U.S. 10th Circuit Court of Appeals Monday, “a constitutional showdown over states’ rights to regulate their own elections as well as criticism of the way the federal Election Assistance Commission operates.”
Both Kansas and Arizona have passed state requirements that voters must prove citizenship through a passport or birth certificate before they can register to vote. Lawmakers in those states say the measure is to prevent voter fraud. That rule is stricter than federal ones, which require a voter to merely affirm citizenship in writing.
Kansas Secretary of State Kris Kobach (incorrectly identified by the Los Angeles Times as Attorney General), who argued on behalf of both states, said the EAC is “using the federal form as a lever to displace the state’s power.”
The three-judge appellate panel seemed most focused Monday on whether Alice Miller, the acting executive director of the EAC, had the authority to allow her staff to refuse the requests by Kansas and Arizona to make the federal forms adhere to the two states’ tougher standards.
“Where in the record do we find sub-delegation,” asked Judge Carlos Lucero. He wondered hypothetically whether a court clerk would be allowed to render judicial decisions if there were no judges on the bench.
Kobach requested a fast-tracked decision, but any ruling is likely to be appealed to the U.S. Supreme Court.
A Shawnee County judge cleared the way Friday for Kansas to use a dual voting system to help enforce its proof-of-citizenship rule for new voters, suggesting that doing otherwise could taint the state’s August primary election.
District Court Judge Franklin Theis’ ruling was a victory for Secretary of State Kris Kobach, a conservative Republican who champions the citizenship rule as an anti-election fraud measure…
“What he’s done is not unreasonable and not unfair.”