“Noncitizen Voting Case Pits Justice Department Against States That Require Proof of Citizenship”


“The free-for-all boxing match among the U.S. Election Assistance Commission (EAC), the League of Women Voters, the NAACP, Kansas, and the U.S. Department of Justice (DOJ)” over the right of states to require proof of citizenship from people using the federal voter registration form was back in federal court for another hearing on March 9.


Judge Richard Leon presided over a sometimes contentious hearing on the plaintiffs’ request for a preliminary injunction that would rescind the Election Assistance Commission’s change of the instructions on the federal voter registration form to accommodate a request by Kansas. The Sunflower State wants the form to note that Kansans wishing to register must meet a proof of citizenship requirement.


The interveners again presented solid arguments; the plaintiffs and their allies at the DOJ once again did not:


Following on the DOJ’s “potentially unethical and unprofessional behavior in refusing to carry out its duty to defend” the EAC, “the Federal Programs Branch came into this week’s hearing once again trying to lose the case.  The Justice Department’s lawyer told Leon that it was willing to agree to a preliminary injunction.”  At a previous hearing, Judge Leon called this behavior by the DOJ “unprecedented” and “extraordinary.”


Over the objections of the DOJ and plaintiffs, Kansas Secretary of State Kris Kobach, intervening to defend the EAC, deposed EAC Commissioner Christy McCormick. “The Department of Justice was so concerned over McCormick’s testimony and the internal communications between DOJ and the EAC produced for the deposition that it asked Leon for a protective order sealing the deposition… the Justice Department’s attempt to keep them from coming to light suggests that the conflict of interest mentioned in McCormick’s letters may be very serious, indeed.”


Judge Leon asked the “struggling” DOJ lawyer Galen Thorp “if he could name ‘any statute or any case precedent, Supreme Court on down, that a Commission created by Congress doesn’t have the authority to invoke or waive attorney-client privilege[.]’ The lawyer could not…”


Plaintiffs’ lawyer Michael Keats “gave an often rambling, disjointed presentation. Just as at the last hearing, he did not seem to have an in-depth knowledge of the facts or applicable election law” and “made the type of mistake one would expect from a less experienced attorney. Twice he jumped to his feet trying to object to Kobach’s oral argument.”


Judge Leon allowed an additional 10 days for all sides to file supplemental briefs.