April 1, 2014
Roxana Hegeman, ASSOCIATED PRESS
Federal election officials have asked a judge to temporarily suspend his
own order that they help Kansas and Arizona enforce state laws
requiring voters to prove their U.S. citizenship, arguing that the case
“implicates the fundamental right to register to vote.”
The court filing late Monday comes in response to U.S. District Judge
Eric Melgren’s decision on March 19 requiring the U.S. Election
Assistance Commission to immediately modify a national voter
registration form to add special instructions for Arizona and Kansas
residents about those states’ proof-of-citizenship requirements.
More than a dozen voting rights groups, which had previously intervened
in the litigation, made a similar joint request for a stay last week.
Project Vote Inc. filed its own motion Tuesday seeking the same thing.
Kansas and Arizona had asked the federal agency for state-specific
modifications, but it refused. Secretaries of State Kris Kobach of
Kansas and Ken Bennett of Arizona, both conservative Republicans, sued
the agency last year.
Arizona enacted its proof-of-citizenship requirement by voter initiative
in 2004, and Alabama, Georgia and Kansas followed with similar laws.
Most voters in both states register with state forms, but their
officials said the availability of the federal form created a loophole
in enforcement of proof-of-citizenship requirements. Supporters argue
the requirements preclude voter fraud by preventing noncitizens from
voting, particularly those who are in the country illegally.
Critics of such laws view them as suppressing voter participation,
undermining the core purpose of the National Voter Registration Act of
1993.
The election commission argued that it has a substantial case that is
likely to succeed on appeal because the district court’s order conflicts
with a U.S. Supreme Court decision last year and does not give
appropriate deference to the agency’s fact-findings when it rejected the
state’s requests.
“In any event, this case — which implicates the fundamental right to
register to vote — presents novel legal questions of undoubted
seriousness, complexity, and weight, thereby making preservation of the
status quo appropriate pending further review,” the government wrote in
its filing.
Following the court’s order, the EAC said it began adding the requested
state-specific instructions to the federal form. An affidavit from its
acting executive director, Alice Miller, filed with the stay request
noted the federal form is maintained in seven languages and anticipated
that the modified form would be ready to post on its website by April
11.
The case has already been appealed by the voting rights groups to the
10th U.S. Circuit Court of Appeals. The Justice Department, which
represents the agency, wrote that it believes the court’s order last
month is in error and it is evaluating whether to appeal.
“The probability is low that the court would grant the stay that is
being requested by the Obama Justice Department,” Kobach said Tuesday.
“The reason being is the court recognized the need for an immediate
change in the federal form — and that is why the court used the word
‘immediately.'”
Kansas needs to start planning months in advance of the primary election
in August and the general election in November, he said.
“So, if anything, the urgency is on the state of Kansas’ side, not on
the side of the federal government or on the side of the interest groups
that have intervened in the case,” Kobach said.
If the court grants the stay, Kansas would implement a dual voting
procedure, Kobach said. Such a system would limit Kansas residents who
register with the federal form to voting only in presidential, U.S.
Senate and congressional races.
The voter registration forms for Kansas and Arizona require new voters
to provide a birth certificate, passport or other documentation to prove
their U.S. citizenship to election officials. The federal registration
form requires only that prospective voters sign a statement declaring
they are citizens.