Law & the Courts

The Obama Administration Blocks Efforts to Stop Non-Citizen Voting

Kansas and Arizona ask the Supreme Court to ensure that only citizens vote in their states.

Approximately 6.4 percent of non-citizens voted in the 2008 presidential election, according to a study released last year by professors at Old Dominion University and George Mason University. The figure for the 2010 midterm elections was 2.2 percent. The Obama administration doesn’t care. In fact, it is trying to stamp out state-led efforts that would help ensure that only American citizens are electing our leaders.

The latest bureaucratic roadblocks have been erected in Arizona and Kansas, which simply want people to verify their citizenship before voting. To implement their commonsense measures, Arizona and Kansas asked the U.S. Election Assistance Commission (EAC) — a small federal agency that exists primarily to assist the states in creating the federal form citizens use to register to vote by mail — to add the proof-of-citizenship requirement to the registration instructions specific to Arizona and Kansas.

Their request was denied because of the decision of one federal employee in Washington, D.C.

You might ask, “Where do Arizona and Kansas get the authority to verify citizenship?” The answer is the Constitution, whose Voter-Qualifications Clause grants the states the power to set qualifications for voting. The power of the federal government to act in this area is limited. The Constitution’s Election Clause permits Congress to determine only the times, places, and manner of holding elections.

As succinctly stated by our Supreme Court, “the Elections Clause empowers Congress to regulate how federal elections are held, but not who may vote in them” (emphasis in original). Deciding who may vote is the sole prerogative of the states under the Constitution.

So is this a who case or a how case? Only applicants who present the necessary documentary proof of citizenship are registered and qualified to vote in Arizona and Kansas. Those who cannot establish that they are citizens are not qualified to vote there. The requests made by Arizona and Kansas to the EAC undoubtedly concern who may vote in elections.

Exhibiting an unmistakable hallmark of the Obama administration, the EAC was not deterred by its lack of authority to act in this area. The EAC made the unilateral determination that documentary proof of citizenship is not “necessary” to the states’ assessment of voter eligibility.

In so doing, the EAC’s acting executive director claimed that the evidence presented by Arizona and Kansas — over 200 specific cases of non-citizen voter registration — “fail[ed] to establish that the registration of noncitizens is a significant problem in either state.”

Despite the facts, the EAC employee who denied the requests of Arizona and Kansas claimed that the federal registration form already provides safeguards to prevent non-citizens from registering to vote. These “safeguards” are nothing more than an honor system: a checkbox at the top of the form, the words “For U.S. Citizens” on the cover page, and an attestation of citizenship next to the signature box.  

Arizona and Kansas sued. A commonsense victory at the district court was overturned by the Tenth Circuit Court of Appeals, and the fight to restore election integrity has now arrived at the Supreme Court, which is being asked to reverse the decision by the EAC and allow Kansas and Arizona to ensure that only citizens vote in their states.

Last week, the Public Interest Legal Foundation filed a brief, on behalf of the American Civil Rights Union, supporting Supreme Court review. The brief explains to the Supreme Court that the so-called safeguards of the federal registration form have unequivocally failed to prevent non-citizen registration.

Along with its brief, we provided the Court with 13 federal forms from Harris County, Texas, that demonstrate the failures of the citizenship “checkbox” honor system. On four of these forms, the individuals actually checked “no” on the citizenship question, six checked “no” and “yes,” and the remaining three left the checkbox blank entirely. Each person was registered to vote.

The Old Dominion and George Mason study corroborates that these registrations are not harmless mistakes. Non-citizens are voting. And each vote by a non-citizen effectively cancels out the vote of an American. With the 2016 election season on the horizon, it is vital that the Supreme Court accept the petition for certiorari filed by Kansas and Arizona and overturn the Tenth Circuit’s flawed decision. 

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