The conservative-driven movement to expand voter restrictions in the name of reducing polling booth fraud has often been described as a solution in search of a problem.
Despite evidence suggesting voter fraud is rare, it’s a crusade that has proved so durable in GOP-dominated states like Arizona and Kansas that its leading proponents are undeterred — even by the U.S. Supreme Court.
Get a high court decision that bars you from requiring residents to produce documentary proof of citizenship like a passport or birth certificate when registering to vote?
Find a way around the decision, at least for your state, and at least for now.
In Arizona and Kansas, that has meant plans to create expensive two-track voter registration systems: one for federal elections that would not require paper proof of citizenship, the other for state and local elections that would.
And the two states are making a parallel effort in U.S. District Court. They have filed a lawsuit challenging a directive in the 1993 National Voter Registration Act (NVRA) that requires states to “accept and use” the federal voter registration form.
That universal form, developed to encourage mail-in registration, accepts the applicant’s signature as a legal sworn oath of U.S. citizenship.
“It’s hard to say where this will end up,” election law expert Daniel Tokaji at Ohio State University says of the states’ court challenge.
“But, with certainty, the battles over ballots and access will continue, and will continue to be quite rancorous in months and years to come,” he says. “Arizona and Kansas seem really determined to implement their proof of citizenship requirements, notwithstanding the Supreme Court decision.”
In the wings is Georgia, another state with a proof-of-citizenship requirement for new voters, waiting to see how broadly it can be applied.
The Arizona Pushback
Nearly a decade ago, Arizona voters passed a measure that imposed new requirements for voting. That included presenting photo identification at the polls and producing proof of citizenship when registering.
A challenge to the citizenship requirement was heard earlier this year by Supreme Court, which ruled 7-2 that such proof could not be required.
“We hold that [the NVRA] precludes Arizona from requiring a Federal Form applicant to submit information beyond that required by the form itself,” Justice Antonin Scalia wrote for the majority.
The court found that Congress has the power to regulate election rules enacted by the states. But the decision left the door open for the states to seek permission from a federal elections agency to make state-specific changes to the universal form, including altering the citizenship requirement for state and local elections.
That agency, the Election Assistance Commission, currently has no commission members and so was unable to rule on the states’ request for the change. So was born the dual-registration plan, and the fresh federal lawsuit.
Arizona officials argue they need separate registration forms to comply with both federal rules, and the state’s proof-of-citizenship requirement. The two-tier system is expected to cost counties hundreds of thousands of dollars, and, according to a review by the Arizona Republic, “affect only 1,327 of the state’s 3.2 million registered voters.”
Kansas Secretary of State Kris Kobach, a national figure in promoting proof-of-citizenship requirements, has characterized his state’s move to a two-tier plan as a “contingency” to be used in the event the states fail to prevail in federal court.
Burden vs. Discrimination
The Inter Tribal Council of Arizona, the plaintiff in the Supreme Court citizenship proof case, last week filed a motion to intervene as defendants in the states’ new lawsuit.
The 21-tribe member council, along with two citizen groups and a state senator, argue that the states are simply seeking to undo the Supreme Court ruling by forcing changes to the federal voter registration form.
They argue that tribal members are among those who would “face significant hurdles in registering to vote,” including potential costs related to securing documents, and distances required to travel from reservations to registration points.
“There’s been a campaign ongoing for the past several years to enact laws that we view as voter suppression, and, to a large extent, that battle has been fought over the photo ID laws,” says Mark Posner of the Lawyers’ Committee for Civil Rights Under Law, which is representing the tribal council
“But another part of it is laws which to seek to determine who can register in terms of providing documentary proof of citizenship,” he says. “It’s just another way in which hurdles get created to inhibit the ability of people to freely access voting.”
Kansas and Arizona have asked for an expedited schedule for their case, and are also seeking a preliminary injunction that would force the Election Assistance Commission to modify the federal form for Arizona and Kansas to reflect their proof-of-citizenship requirements. The request for the injunction will be heard in federal court in Kansas on Dec 13.
“It’s a big mess,” says Tokaji. “The EAC is an agency without any commissioners. Everyone knows it can’t take action on Arizona’s requests, or any other requests.”
So the requests, by default, end up in federal court.
“This is another example of Congress’s dereliction of duty — for years they’re failed to appoint nominees,” he says. “It’s appalling.”