DC Circuit Blocks Proof of Citizenship Requirements for 2016 Election

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Late Friday, a panel of the U.S. Court of Appeals for the D.C. Circuit, on a 2-1 vote, issued an injunction in a case challenging the U.S. Election Assistance Commission (EAC)’s inclusion of state proof-of-citizenship laws on the federal voter registration form. The Washington Post has more:

A U.S. elections agency must remove a proof-of-citizenship requirement from a mail-in federal voter registration form used for November’s election in Kansas, Alabama and Georgia, a federal appeals court panel in Washington ordered late Friday, reversing a lower court. [NOTE: I blogged that June decision here.]

The 2-to-1 decision by the U.S. Court of Appeals for the District of Columbia Circuit came one day after civil rights groups in oral arguments said the provision could disenfranchise tens of thousands of U.S. citizens applying to vote in Kansas without required papers.

Kansas is the only state enforcing a demand to show documentation such as a birth certificate, passport or naturalization papers instead of accepting signed and sworn affirmation of citizenship to register to vote in federal races.

As noted above, the decision was not unanimous:

U.S. Appeals Court judges Judith W. Rogers and Stephen F. Williams granted a preliminary injunction while a lawsuit by the League of Women Voters and other groups against the document requirement is pending, saying the voter groups had shown “irreparable harm” caused by the change and were likely to prevail once the case is decided …

U.S. Appeals Court Judge A. Raymond Randolph disagreed with his two colleagues Friday, quoting a 2013 Supreme Court decision that said it would “raise serious constitutional doubts” if the federal elections assistance body prevented a state from “enforcing its voter qualifications.”

The judges in the majority said the full assistance commission could vote to approve the states’ request for required citizenship documents if it desired, or else the states could sue in federal court if the commission denied the states’ request or failed to act on them.

The case now returns to the trial court, where a hearing is scheduled today. While the states – and in particular Kansas SoS Kris Kobach, who argued the case before the DC Circuit because the U.S. Department of Justice declined to defend the case – could seek review by the U.S. Supreme Court, such review is unlikely, given an 8-member sharply divided Court. As UC-Irvine’s Rick Hasen says, “good luck trying to find a fifth vote“, which would be necessary to overturn the DC Circuit’s order.

While this action likely settles the issue for November 2016, it doesn’t settle it forever. The panel, citing the Supreme Court’s ruling in the Inter-Tribal case, notes that the states can still ask the EAC to include the proof-of-citizenship requirements on the federal form – and then sue if that request is denied or isn’t acted upon in a timely manner. Such a request would put the EAC on the record in a formal vote (as opposed to a letter by the Executive Director). But given that 1) the EAC requires three votes for approval 2) current Commissioners appear to be split 2-1 in favor on the issue and 3) a vacancy likely to be filled (if at all) by a no vote, continued litigation is almost a certainty, setting off another round of “ping-pong” in this long-running dispute.

The focus now shifts to clarifying the rules for the 2016 general. According to the Post, at last week’s hearing, SoS Kobach said that Kansas “will retroactively allow voters to cast ballots in federal races if their applications were canceled solely because they did not document citizenship.” How that works in this fall’s vote – and how many voters it affects – remains to be seen.

Needless to say, this is an important ruling on several fronts: proof-of-citizenship, state-federal relations, administrative law and even the immediate future of the federal courts. I’m tempted to say it looks like this matter is settled for the time being, but the lengthy history of this dispute suggests that the better approach is … stay tuned.