The D.C. Circuit Court of Appeals told Kansas, Alabama and Georgia Monday that the states cannot require proof of citizenship as an addition to the federal voter registration form.
The appeals court had issued a preliminary injunction blocking the states in a Sept. 9 order, but this was the first time the appeals court spelled out its legal reasons.
The court, in a 2-1 vote, found EAC Director Brian Newby acted arbitrarily and capriciously by giving consent – without approval of the full commission – to allow the three states to impose citizenship proof on the federal voter form.
In 2015, the commission hired Newby as its new director. Newby formerly worked for Kansas Secretary of State Krisk Kobach, who has fought for a variety of laws to discourage illegal immigration and to require proof-of-citizenship in voting.
Back on Sept. 9 the panel issued a preliminary injunction against Newby but this is the first the court has issued a full opinion, and dissent, explaining its rationale.
On the issue of states imposing conditions to prevent non-citizen voting the majority said, the states and the public have a “compelling interest in preserving the integrity of [the] election process. What is disputable is whether an injunction would undermine this interest if it permitted fraudulent registration by non-citizens.”
“There is precious little record evidence that it would do so,” wrote Judge Judith Rogers, joined by Judge Stephen Williams. In the dozen years between 2003 and 2015, Kansas reported just 18 non-citizens had tried to or successfully registered to vote. Only one of them tried to use the federal form.
In dissent, Judge Raymond Randolph called the order unconstitutional. “On the eve of a Presidential election, and elections for federal office, a court has issued an injunction forbidding Kansas, Georgia and Alabama from enforcing their election laws, law requiring those who seek to register to vote to prove that they are citizens of this country.”
In recent years some states have enacted state voter-registration laws that require documentary proof of U.S. citizenship. Historically, the federal form has never included that requirement. The Constitution directs states to regulate the times, places and manner of congressional elections, but allows Congress to preempt those regulations.
The 1993 National Voter Registration Act requires states to permit voters to register for federal elections when they apply for a driver’s license, or by mail or in person. The litigation involves the mail-in registration.
States must accept federal elections applicants who complete the federal form. That form requires voters to sign, under penalty of perjury, that among other things, they are U.S. citizens. It does not require proof of citizenship.
In recent years, Alabama, Georgia and Kansas enacted laws requiring documentation of citizenship, prompting litigation. Arizona followed suit. The commissioners denied Arizona’s requested change in 2007 and in 2013 the U.S. Supreme Court held the NVRA forbids states from demanding information from voters that is not on the federal form.
But Kansas renewed its request for citizenship proof with the EAC. Newby approved the proof-of-citizenship requirement on the federal form for Kansas in January 2016. The League of Women Voters sued.
League of Women Voters v. Newby, No. 16-5196