Amid a significant disagreement about federal power to oversee state voter registration rules, a divided federal appeals court late Friday temporarily blocked a demand in three states — but enforced only in one (Kansas) — that voters seeking to cast ballots for the presidency or Congress must show documents proving they are U.S. citizens.
The 2-to-1 order by the U.S. Court of Appeals for the District of Columbia Circuit found that voting rights groups like the League of Women Voters would suffer “irreparable harm” if the citizenship rule were enforced. While Alabama and Georgia also have such requirements, and the court’s order applies to them, too, those two are not enforcing the demand this year.
A special federal agency, the U.S. Elections Assistance Commission, must now “take all actions necessary” to restore the previously existing federal voter registration form without the proof of citizenship, according to the Friday order That form does not have to be accompanied by such proof; a voter using that form to cast a ballot in a federal election need only check a U.S. citizenship box and swear that the form is filled out correctly and accurately.
The three states had won, last January, permission to include a citizenship proof as part of the federal form, but they did so only from the EAC’s executive director, Brian D. Newby, and without any action by the Commission itself. Newby has argued that he had the authority to grant the three states’ request, but the Justice Department does not support his view or his actions. The Department supported the challengers’ plea to block enforcement of the requirement.
Newby is a former state election official in Kansas, and had previously worked directly under the Kansas Secretary of State, Kris W. Kobach, who for several years has been leading a campaign — in Kansas and elsewhere — to require that voters present documents to prove they are U.S. citizens before they could register. Kobach also has been a strong advocate of firm limits on immigration and restrictions on undocumented immigrants already in this country.
The effort to impose the citizenship proof rule was partially rebuffed by the Supreme Court in a ruling in an Arizona case three years ago — Arizona v Inter Tribal Council of Arizana. In June 2015, the Supreme Court denied review of a plea by Kobach along with Arizona officials seeking to force the Election Assistance Commission to defer to state proof-of-citizenship requirements.
Under the D.C. appeals court’s new order, the three states are required to act as if they never had permission to include the citizenship proof on the federal form. The EAC itself must post on its websirte a modified version of the federal form, leaving out the citizenship proof provision.
Kansas has been using a dual system of registration — one for state elections, with the proof requirement included, and one for federal elections, without the proof requirement. With the permission granted last January, it was going to use a single system this year.
Friday’s order was published late in the day, one day after the three-judge Circuit Court panel had held a hearing on the challengers’ argument that the EAC’s executive director did not have the authority to grant the states’ request. The challengers contend that this is a policy shift that would require the votes of three EAC commissioners.
The order is not a final ruling on the validity of Newby’s actions; that question is still awaiting final review in the U.S. District Court of Judge Richard J. Leon. Friday’s order, however, did reverse a decision last June 29 by Judge Leon, refusing a request to block the citizenship proof requirement in the three states.
Judge Leon said the voter-assistance efforts of the groups like the League of Women Voters would not be seriously impaired in the face of the proof requirement, since they already had to educate voters in Kansas that they had to have such a document in order to register to vote in state elections. He has not yet ruled on whether the Newby orders were valid.
Circuit Judge Judith W. Rogers and Senior Circuit Judge Stephen F. Williams voted for the temporary ban on enforcement. Senior Circuit Judge A. Raymond Randolph would have rejected the challenge and would have upheld Judge Leon’s ruling.
Judge Randolph, in a brief dissenting opinion, said that it would raise “serious constitution doubts” if this case ultimately led to a federal court order barring the Election Assistance Commission from granting a state’s request to impose the citizenship proof rule. That’s because, the dissenting judge said, the Constitution gives the states the power to set voting requirements in federal elections.
Answering the dissent, the Rogers-Williams order said that the constitutional issue has not arisen in the case because the challengers were only seeking ultimately to keep the EAC from enforcing Executive Director Newby’s January decision on the issue. The EAC, those two judges wrote, would have authority to require proof of citizenship on the federal form if it decided that was necessary to carry out a state requirement that voters must be U.S. citizens in order to be eligible to vote.
Up to last January, and the Newby order, the Commission had refused to make such a finding.
