Requiring proof of citizenship is another barrier to voting

 Scott Forsyth, The Daily Record Newswire

Some folks believe we have an epidemic of voting by aliens. Kansas must be a hot spot, judging by the recent comments of its Secretary of State, Kris Kobach.

“And you have many cases around the country of aliens, usually being manipulated by some sort of group that wants to steal an election. They’re told falsely they are eligible to vote and then they’re coached how to vote, and its happening all across the country.”

The secretary does not offer any evidence of aliens voting and he does not identify the groups doing the manipulating, but he recently won a skirmish with the United States Election Assistance Commission on the issue, which he portrays as a victory for states’ rights. He is overstating the significance of his win.

In the 2011 the Kansas Legislature passed a law requiring a person applying to vote to prove his United States citizenship. Arizona, Alabama and Georgia have similar laws.

Proof of citizenship is in addition to photo identification, which a state may require, according to the Supreme Court, Crawford v. Marion County Election Board, 553 U.S. 181 (2008).

The state laws on citizenship must be mindful of the National Voter Registration Act. It requires states to “accept and use” a federal voter registration form. The form only has the applicant certify he is a citizen.

Arizona’s law ran afoul of the Act, because it explicitly required state officials to reject the federal form, if unaccompanied by evidence of citizenship. In 2013, the Supreme Court held this requirement violated the Supremacy Clause, Arizona v. Inter Tribal Council of Arizona, Inc., 133 S. Ct. 2247 (2013) (“ITCA”).

In ITCA, the court pointed out the Constitution gives Congress the power to alter or supplant state regulations determining the “Times, Places and Manner of holding” federal elections, U.S. Const. art I, § 4, cl. 1. These words are “comprehensive” enough to permit “a complete code for congressional elections,” including regulations relating to registration, ITCA, 133 S. Ct. at 2253.

Yet, Congress’ power is not unlimited. The Constitution gives each state the authority to determine the qualifications of voters for state and federal elections, U.S. Const. art I, § 2, cl. 2. In other words, while Congress may decide how federal elections are held, the states decide who will vote.

Within the authority to set voter qualifications is the power to enforce those qualifications. “A federal statute (which) precluded a state from obtaining information necessary to enforce its voter qualifications” “would raise serious constitutional doubts,” ITCA, 133 S. Ct. at 2258-59.

The court suggested Arizona should have sought the inclusion in the instructions accompanying the federal voter registration form the information about Arizona requiring proof of citizenship. Then if a particular applicant did not provide the right proof, the state could reject him as unqualified.

The Election Assistance Commission is the agency which regulates the content of the instructions. The day after ITCA, the Kansas Secretary of State petitioned the agency to insert in the instructions specific to Kansas the need for proof of citizenship. The agency rejected the request, citing the National Voter Registration Act.

The secretary sued and last month a federal district court agreed with him, Kobach v. United States Election Assistance Comm’n, 13-CV-4095 (D. Kansas March 19).

Nothing in the act precluded a state from demanding proof of citizenship or the insertion of language in the state-specific instructions informing the applicant of the need to present proof of citizenship. The agency did not have any discretion on the subject.

The court repeated the Supreme Court’s observation that if the act attempted to regulate voter qualifications, it might be unconstitutional. Since the act did not, the court could avoid the constitutional question.

That is the gist of the secretary’s win, a relatively narrow decision that Kansas law does not conflict with a federal statute. The litigation over the proof of citizenship requirement continues. Last summer the ACLU sued to overturn the requirement, alleging it violates the Nebraska Constitution.

While the sides battle, the secretary has placed more than 17,000 persons, who filled out the federal voter registration form, on a “suspense” list, awaiting proof of citizenship. He is not too concerned about any getting off the list. They “are mostly casual registrants, many of whom do not intend to vote.”

In 2008, six million Americans did not vote because they missed a registration deadline or did not know how to register. We need to make every effort to reduce that number. Requiring proof of citizenship prior to registration and placing persons on suspense lists are the wrong way to go.

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Scott Forsyth is a partner in Forsyth & Forsyth and serves as counsel to the local chapter of the ACLU. He may be contacted at (585) 262-3400 or scott@forsythlawfirm.com.

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