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Kris KobachKris Kobach
Kansas Secretary of State Kris Kobach on Aug. 21 filed a complaint against the U.S. Election Commission, asking a court to order the EAC to modify its instruction on a federal form for National Mail Voter Registration.
Arizona joined Kansas in filing the lawsuit.
According to a news release from Kobach, the lawsuit also seeks a declaration from the court that an oath without concrete evidence of citizenship is not enough to put into effect the Kansas and Arizona state laws, and they request an order compelling the EAC to include this evidence requirement on their state-specific instruction in the federal form.
The U.S. Supreme Court threw out a proof of citizenship law in Arizona in June.
On Aug. 13, the ACLU gave Kobach a 90-day notice that it may sue if Kansas does not comply with federal voting law. The ACLU letter sent to Kobach said thousands of Kansans have been prevented from registering to vote. About 14,000 voter registration applications have been held up, as they were submitted after the new requirement went into effect Jan. 1, 2013, according to the ACLU. They are about one-third of the total number of applications, an ACLU spokesman said.
The National Voter Registration Act requires the states to accept and use the federal form to register individuals to vote, according to Kobach’s news release. The EAC maintains the federal form, including information necessary to enable the appropriate state election official to assess the eligibility of the applicant. All 50 states and the District of Columbia have state-specific instructions in the federal form.
Kansas first requested an update to its instructions in August 2012, after changes were made in Kansas election law requiring evidence of U.S. citizenship when registering to vote. The EAC took no action on the request; there were (and are) no EAC commissioners to consider or approve a revision. Kansas renewed its request in June 2013, and the EAC staff deferred such request until the reestablishment of a quorum at the EAC.
Kobach’s news release stated that in the U.S. Supreme Court case of Arizona v. Inter Tribal Council of Arizona, Inc., the court specifically suggested this lawsuit saying: “Should the EAC’s inaction persist, Arizona would have the opportunity to establish in a reviewing court that a mere oath will not suffice to effectuate its citizenship requirement and that the EAC is therefore under a nondiscretionary duty to include Arizona’s concrete evidence requirement on the Federal Form.”
“To refuse to modify the state-specific instructions of the federal form to conform with our states’ voter qualification and registration laws,” said Kansas Secretary of State Kris Kobach, “invades the province of state sovereignty reserved by the Tenth Amendment.”
Kobach asserts that contrary to a commonly held misconception, the Supreme Court in Arizona v. Inter Tribal Council of Arizona, Inc. did not hold that a state may not require evidence of U.S. citizenship when registering to vote. Rather, according to Kobach, the majority held that the NVRA “precludes Arizona from requiring a Federal Form applicant to submit information beyond that required by the form itself. Arizona may, however, request anew that the EAC include such a requirement among the Federal Form’s state-specific instructions, and may seek judicial review of the EAC’s decision under the Administrative Procedure Act.”
Kansas enacted the Secure and Fair Elections Act in 2011, which requires all newly-registered voters to provide proof of U.S. citizenship, Kobach’s news release stated. The Supreme Court has spoken with respect to use of the federal form only, and with respect to federal elections only, according to Kobach. Congress possesses no authority to regulate state elections, Kobach’s news release stated.
During the period that the lawsuit is pending, and until the EAC changes the Kansas-specific instructions to the federal form, the minuscule number of voters who use the federal form and fail to provide proof of citizenship will be permitted to vote in federal elections only, Kobach stated in the news release. Those who use the federal form will be able to vote in federal, state and local elections if they submit a citizenship document before election day, Kobach’s news release stated.
“Kansas voters will be best served when the EAC amends the Kansas-specific instructions on the federal form to include submitting concrete evidence of U.S. citizenship when registering to vote,” Kobach said in his news release.
“We have requested the EAC make these changes to the federal form instructions because our laws require election officials to obtain information necessary to assess voter eligibility,” said Arizona Secretary of State Ken Bennett. “Currently, the federal form does not advise applicants to provide citizenship documents, in accordance with Arizona law. It is our hope and belief that a court will issue an order to force the EAC to change the federal form to reflect Arizona’s registration requirements.”