By Dion Lefler
A federal appeals court on Friday handed a significant setback to Kansas Secretary of State Kris Kobach’s efforts to require all new and re-registering voters to provide a document proving citizenship.
The 10th Circuit Court of Appeals in Denver ruled that Kansas cannot require proof-of-citizenship documents — almost always a birth certificate or passport — from prospective voters who register using a federal voter registration form. The court also said that a federal agency doesn’t have to alter the form to fit Kansas requirements.
Arizona has a similar proof-of-citzenship requirement, and Kobach argued the case on behalf of both states in conjunction with Arizona Secretary of State Ken Bennett.
The Kansas requirement is separate from a section of state law requiring voters to show photo ID at the polls.
U.S. District Judge Eric Melgren in Wichita 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.
“I am very pleased, obviously,” said Dolores Furtado, president of the Kansas chapter of the League of Women Voters. “It’s a good feeling because we’re truly trying to help” people get registered to vote.
The national and state leagues had intervened in the case on the federal agency’s side, along with a host of voting rights groups including Common Cause, Project Vote and the Inter Tribal Council of Arizona.
Kobach could not be reached for comment late Friday.
Furtado said the league’s main interest is in increasing participation in the democratic process “rather than trying to make more hoops, more steps, to go through.”
The federal form, enabled by the National Voting Rights Act, was meant to create a common voter registration card that could be used to register across the country.
The primary difference between the federal and Kansas registration forms is that the Kansas form requires prospective voters to show documents proving citizenship, while the federal form requires a signature under penalty of perjury to prove citizenship.
As part of its ruling, the court said Kansas and Arizona have other ways to check voter 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 the 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 because of Senate gridlock over President Barack Obama’s nominees.
The appellate court decision could open a loophole in Kansas’ proof-of citizenship law.
Using the federal form, Kansans can register and vote in federal elections for president and Congress. Federal-form-registered voters are not allowed to vote in state or local elections, and their signatures are not considered valid on local petitions. That was significant earlier this year when advocates for a Wichita petition to decriminalize marijuana registered new voters with federal forms only to have those signatures thrown out.
Voters who use a state form to register but don’t provide the documents proving citizenship are not allowed to vote in any election. As of this week, about 21,000 registrants have seen their voting privileges suspended because of lack of citizenship proof.
“I’ve been very concerned about the numbers of people on the suspense list in Kansas,” Furtado said.
If Kobach appeals the case further, possibly to the U.S. Supreme Court, the league will continue to be active in it, she said.
The appellate decision could revive a more-or-less dormant case in Topeka in which the American Civil Liberties Union has alleged that a two-tier voting system is unconstitutional.
If the ACLU should win that case, voters would be able to use the federal form to register to vote in all elections in Kansas.
The appeals court signaled that it did not think federal law requires Kobach to let federally registered voters participate in state elections.
“The (Voting Rights Act) therefore leaves Arizona and Kansas free to choose whether to impose a documentary evidence of citizenship requirement on voters in state elections,” the court wrote.
However, the court added a footnote that it was not ruling on whether the two-tier system violates the state’s law or state constitution.
That means the legality of a two-tier system will likely be decided by the Kansas Supreme Court instead of the U.S. Supreme Court.