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Kansas and Arizona Voter Registration Law Cases Get Stayed, Expedited Appeal

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

Back in March, a federal district court held that because the National Voter Registration Act did not explicitly preempt states from passing voter registration requirement laws (specifically, proof-of-citizenship laws), the United States Election Assistance Commission could not deny requests from Arizona and Kansas to include proof-of-citizenship requirements on the federal form. By law, the states have to accept the lenient federal form, which at present, only requires one to attest to citizenship.

The case presents interesting questions of state and federal preemption, such as whether the federal government can impliedly set voter registration requirements by requiring acceptance of their own form, and whether states can force the federal government to change their form by passing their own requirements.

For now, though a district court has held in the states' favor, that decision was put on hold by the Tenth Circuit pending an expedited appeal on the merits.

District Court: Add Language

U.S. District Eric Melgren, in his March 19 decision, ordered the EAC to include special instructions for Arizona and Kansas about those states' proof-of-citizenship requirements, reports The Associated Press. He also refused to stay his order pending appeal.

"Public interest is best expressed through laws enacted by the public's elected representatives," Melgren wrote in a nine-page ruling denying the request for a stay. "The people of Arizona and the representatives of Kansas have decided that the public interest of their residents is in preventing voter fraud and protecting public confidence in the integrity of their elections."

According to the AP, he also labeled the possibility that anyone would be denied the right to vote as "only theoretical."

Since passing its proof-of-citizenship requirement, 17,790 voter registrations have been suspended by the state of Kansas, though fewer than 100 voters in the state (out of 1.72 million total voters) have registered with the lenient federal form, reports the AP. In Arizona, 1,550 have used the federal form out of 3.25 million registrations.

10th Cir: Expedited Appeal, Possibly Before Primaries

In a brief order [PDF] issued earlier this week, the Tenth Circuit vacated a temporary stay from May 8, and extended the stay pending appeal. The court also granted the EAC's request for expedited review of the case, with a briefing and argument schedule to follow.

States: Dual Elections a Possibility

Responding to the stay, officials in both Kansas and Arizona have threatened to have dual elections, which voters who opted to use the proof-free federal forms allowed to vote only on federal matters.

Kansas Secretary of State Kris Kobach told the AP that he was disappointed in the order, but encouraged by the expedited appeal. He stated that a dual election might not be necessary if the Tenth Circuit issues a ruling before the Aug. 5 Kansas primary.

Officials in Arizona, however, are moving forward with plans for a two-tier election system.

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