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10th Cir. Rules Against Kan., Ariz. in Voter-Registration Form Appeal

By William Peacock, Esq. on November 12, 2014 | Last updated on March 21, 2019

States (Arizona and Kansas) have passed laws requiring voters to show proof of citizenship in order to register to vote. Meantime, a long-standing federal law (the National Voter Registration Act, or "Motor Voter" law) says that the U.S. Election Assistance Commission has to make a universal nationwide voter registration form, and that states have to take it and like it.

Long story short: Arizona's law already made it to the Supreme Court last year, when the Court required Arizona to recognize the federal form. However, Justice Scalia also suggested that the states might be able to sue the EAC to force them to add proof-of-citizenship language to the forms.

How well did that work out? Not too well, if the Tenth Circuit's recent opinion is the last word.

No Proof You Need It

One of the most levied criticisms of voter ID laws is that there is not a whole lot of proof that there is a problem that needs to be solved. Judge Carlos Lucero, writing for a unanimous Tenth Circuit panel, echoed that criticism in an opinion denying the states' efforts to force the EAC to add state-specific proof language.

"The states have failed to meet their evidentiary burden of proving that they cannot enforce their voter qualifications because a substantial number of noncitizens have successfully registered using the federal form," Judge Lucero wrote.

Other Means to Your Ends

A big issue in the case was whether the state-specific language should be added as a matter of right, or whether it was in the EAC's discretion whether or not to grant the request. The unanimous panel picked the latter option, and also backed the acting EAC director's finding that states had other ways of combating theoretical voter fraud, including:

  • Prosecuting and/or deporting those who illegally register to vote;
  • Comparing voter registration records with DMV databases (only citizens can get driver's licenses, according to the court);
  • Comparing voter registrations with jury duty records;
  • Comparing voter registrations with federal databases of those who are in the country legally but are not citizens; and
  • Comparing voter registrations with a national database of birth records.

Six-Year-Old Delegation Order Is Good Enough

Interestingly, the major issue during oral arguments -- whether the acting director of the EAC was empowered to make a decision on the state-specific language request in the absence of a quorom of EAC commissioners (none have been appointed to the vacant EAC because of federal political gridlock) -- was not a major issue in the opinion: The unanimous panel held that a 2008 delegation order, giving the acting director authority over a long list of EAC duties, provided that authority.

Appeal Coming, Dual Election System Used

According to the Lawrence Journal-World, Kansas Secretary of State Kris Kobach plans to appeal the decision.

Also, if you were wondering how the dual federal/state registration system worked in the last election, both states followed through on threats of having a dual election system where voters who used the federal form and didn't provide proof of citizenship were only allowed to vote on federal matters.

The impact seems to have been minimal -- though statewide numbers are not yet available, at least in Douglas County, Kansas, only seven voters registered for federal-only ballots, and none of them voted. Nonetheless, a lawsuit is pending over the dual elections in Shawnee County.

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