In a big victory for election integrity, Arizona and Kansas — led by their Secretaries of State, Ken Bennett and Kris Kobach — have obtained an order from a federal judge allowing them to enforce their proof-of-citizenship requirement for voter registration.
In a decision issued on March 19, Judge Eric Melgren of the federal district court of Kansas found that the refusal of federal election authorities to add state-specific instructions to the federal voter-registration form notifying residents of Arizona and Kansas that they have to provide proof that they are U.S. citizens to complete their registration is “unlawful and in excess of its statutory authority.”
This long saga started in 2004, when Arizona’s residents overwhelmingly passed a referendum requiring proof of citizenship to register to vote. In 2011, the Kansas legislature passed a similar requirement. The U.S. Election Assistance Commission (EAC), which is responsible for administering the federal voter-registration form established by the National Voter Registration Act of 1993 (NVRA), had initially refused to amend the state-specific instructions for Arizona and Kansas on the federal registration form.
A large number of liberal advocacy groups, including Project Vote and Common Cause, sued Arizona over the requirement in a case that ended up before the U.S. Supreme Court. In 2013 in Arizona v. Inter Tribal Council of Arizona, Inc., the Court issued a confused opinion in which it said that Arizona must “accept and use” the federal voter registration form, despite Arizona’s citizenship requirement.
However, the Court also laid out a blueprint for how Arizona could enforce its requirement: The state could resubmit its request to the EAC and if the federal agency refused to include the instruction, Arizona could sue the EAC under the Administrative Procedure Act and request a writ of mandamus from a court ordering the EAC to make the change.
That is exactly what Arizona and Kansas did. Both states filed a lawsuit and in December, Judge Melgren ordered the EAC to render a final decision on the request of the states by January 17, 2014. Along with over 400 others, I filed a public comment that argued that the EAC lacked the authority to refuse to grant the states’ request.
On January 17, the acting executive director of the EAC, Alice Miller, issued a 46-page letter denying the states’ request.
Judge Melgren said that he was “skeptical” that Miller had the legal authority to issue any decision since the seats of the four commissioners who are supposed to run the EAC are currently vacant. However, the judge found it unnecessary to make a determination on that question, saying his “decision would be the same if a full commission had voted 4–0 to deny the states’ requests.”