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10th Cir. Hears Arguments in Kansas Voting Rights Case

By Mark Wilson, Esq. on August 26, 2014 | Last updated on March 21, 2019

Kansas recently passed a law requiring voters to prove their citizenship before they can register to vote. Arizona also passed such a law. But here's the rub: Federal law doesn't make voters prove their citizenship through a document like a passport or a birth certificate. Under federal law, voters merely have to affirm they're citizens, and that's that.

On Monday, the Tenth Circuit heard oral arguments in an appeal of the Kansas version of the case. Earlier this year, a U.S. District Court in Kansas ordered the federal Election Assistance Commission (EAC) to alter federal voting forms to reflect each state's requirements.

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State of Confusion

Currently, Kansas has a two-tiered system of voting. People who registered using the state forms, which require proof of citizenship, can vote in both state and federal elections. But those who registered with just federal forms can vote only in federal elections. According to The Associated Press, 180 people who registered with the federal forms weren't able to vote in state-office primary elections this month.

The Tenth Circuit case comes directly out of a 2013 U.S. Supreme Court decision, Arizona v. Inter Tribal Council of Arizona, where the court struck down a similar Arizona law, but still mused that a state could pass stricter regulations than the federal ones.

Political Realities

The Constitution was hardly the watchword at oral arguments; rather, congressional intransigence was the theme. Normally, EAC commissioners, appointed by Congress, would make the decision to change the forms or not, or to determine the content of the forms. But the EAC doesn't have any commissioners. In fact, Congress hasn't appointed a commissioner to the EAC in three years. As The Hill reported in May, "Without commissioners, the EAC cannot hold public meetings, adopt new policies, or issue advisory opinions."

The EAC's refusal to comply with the District Court's order was based on an interpretation of the law made by EAC staff, not by commissioners. The court wondered whether EAC staff, in the absence of commissioners, even had the authority to refuse the order. "All of a sudden the courts are asked to step into inherently political questions and make political decisions," said Judge Carlos Lucero, who believed Congress' failure to appoint any commissioners was actually a legitimate political decision.

Even if the staff members did have the authority to refuse the District Court's order, that would create a two-tiered election system in Kansas. Litigating the constitutionality of that will become the real challenge.

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