Back to Two-Track? Tenth Circuit Reverses on Ariz., Kan. Proof-of-Citizenship

[Image courtesy of ca10.uscourts.gov]

Back in August, I blogged about the Tenth Circuit Court of Appeals’ apparent skepticism about the case involving proof-of-citizenship requirements and the federal registration form in Kansas and Arizona. Two-and-a-half months later, the judges handed down a unanimous decision reversing a lower court and prohibiting the two states from imposing proof-of-citizenship on the federal form. The Wichita Eagle has more:

A federal appeals court has ruled that Kansas cannot require proof-of-citizenship documents from prospective voters who register using a federal voter-registration form – and that a federal agency doesn’t have to alter the form to fit Kansas requirements.

The decision by the 10th Circuit Court of Appeals in Denver is a significant setback for Kansas Secretary of State Kris Kobach’s efforts to require all new and re-registering voters to provide a document proving citizenship – almost always a birth certificate or passport. The requirement is separate from a section of state law requiring voters to show photo ID at the polls.

Arizona has a similar proof-of-citizenship requirement, and Kobach argued the case on behalf of both states in conjunction with Arizona Secretary of State Ken Bennett.

Earlier this year, a federal district judge in Kansas had upheld the requirement:

Wichita Federal District Judge Eric Melgren had ruled that the Election Assistance Commission, a federal agency, was required to add state-specific citizenship-proof requirements to the instructions for using the federal form in Kansas and Arizona. The appeals court overturned Melgren’s ruling.

As highlighted during oral agrument, the court of appeals found that the EAC did have the authority to rule on the states’ request and that its decision was valid:

[T]he court said Kansas and Arizona have other ways to check voters’ citizenship that are less burdensome for voters than requiring them to provide their birth records.

A decision by the executive director of the federal commission “discussed in significant detail no fewer than five alternatives to requiring documentary evidence of citizenship that states can use to ensure that noncitizens do not register using the Federal Form,” the court ruling said. “Kobach and Bennett do not dispute that these means exist, and merely contend that they are overly onerous.”

The appeals court also rejected Kobach’s contention that the executive director of the commission didn’t have authority to reject the state’s request.

The court said it was a valid exercise of power by the executive director, in the absence of a quorum of commissioners. The commission currently has no members due to Senate gridlock over President Obama’s nominees.

This decision reignites a series of conflicts:

1. The ruling doesn’t invalidate the imposition of proof-of-citizenship on state forms (the court specifically notes that it is not ruling on that issue) so, for the time being, two-track registration could be back on the table in Kansas and Arizona – perhaps with those states’ courts being asked to rule on its constitutionality;

2. The case will almost certainly be appealed to the U.S. Supreme Court, with the justices asked to resolve whether the federal government or the states have the final word on requirements for the federal form; and

3. The ongoing controversy about the EAC’s role will almost certainly complicate efforts to confirm four new Commissioners – a prospect that seemed for more promising when two GOP nominees were announced back in July. Predicting how the new Republican Senate majority will handle those nominations is difficult, but it’s hard to imagine how the prospect of a fully-functioning EAC is attractive to members of Congress with doubts about the wisdom or utility of the agency.

This issue is far from over – and its resolution is more unclear than ever. With the 2016 presidential race already coming into view, you can absolutely bet on this issues raising temperatures – and inflaming tempers! – in the months and weeks to come.

Stay tuned.