WICHITA, Kan. - 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 was 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 and 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 Election Assistance Commission 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.
Front Section, Pages 2 on 04/02/2014