Arizona Advocacy Network

Government of, by and for the People

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Federal appeals judges expressed skepticism Monday over Kansas Secretary of State Kris Kobach’s argument that a federal commission must make voters who register using a federal registration form provide proof-of-citizenship documents required by state law.

Kobach argued on behalf of Kansas and Arizona before the10th Circuit Court of Appeals in Denver, in a case where the states are trying to force the federal government to add their requirements to federal vote registration forms mandated by the National Voting Rights Act, also known as the motor voter law.

When Kobach contended that the Election Assistance Commission is required to grant states’ requests to add state-specific instructions to the federal form, Judge Jerome A. Holmes interrupted: “Oh whoa whoa whoa, there’s a big jump there.”

Holmes said when the U.S. Supreme Court decided a similar case from Arizona last year, [Arizona v. The Inter Tribal Council of Arizona, Inc., 570 U.S. __ (2013)] it said states could request that the federal Election Assistance Commission add state-specific requests to the federal form.

While states have the authority to set voter qualifications, the EAC is only allowed to place “necessary” requirements on the forms to establish that voters meet the qualifications.The question is “Necessary as defined by who?” Holmes asked Kobach. “Who is deciding what’s necessary?” 

He implied that the commission has been granted authority by Congress to decide what goes on the federal form, while acknowledging that states could challenge commission decisions as arbitrary or capricious. Kansas requires documents to prove citizenship, which means a birth certificate or passport in almost all cases. The federal form accepts a sworn statement under penalty of perjury to establish citizenship.

The judges also pressed hard on whether the staff of the commission, acting without a quorum of commissioners, even has the authority to make the decision in the first place.

Judge Carlos F. Lucero, who presided over the three-judge panel, grilled Bonnie Robin-Vergeer, the Justice Department lawyer representing the commission, on whether a commission without commissioners could render a final decision on what would be a major change for voters in Kansas and Arizona, a state with a similar law also being represented by Kobach in the court.The EAC has no commissioners right now because the gridlocked Senate hasn’t acted to confirm any of President Obama’s nominees for the panel.

Actually, the reason the Election Assistance Commission has no commissioners is because Senate Tea-Publicans have been trying to nullify the existence of the commission — without passing an act of Congress — by using the filibuster to prevent any commissioners from being appointed to the commission to prevent it from having a quorum to do business.

The decision against adding Kansas- and Arizona-specific requirements to the federal registration form was made by the agency’s executive director, who was ordered to make a decision by U.S. District Judge Eric Melgren of Wichita, who heard the case at the trial level.

Lucero likened the commission staff making decisions on major matters without a commission to the old adage about the tail wagging the dog, adding that it appeared as if “even after the dog is dead, the tail can still keep wagging it.”

Holmes said he didn’t see where Melgren got the idea that he could order a federal agency to act when it didn’t have the members needed to act.

Robin-Vergeer defended the executive director’s decision to act, saying the commission, when it did have commissioners, had delegated the authority for the staff to “maintain the (registration) form consistent with the policies of the commission.” She said that authority remained with the executive director even after all the commissioners’ terms had expired.

However, Lucero questioned whether that creates a due-process issue because there is no actual commission where Kansas and Arizona could have appealed the decision against them. Judges seemed to entertain the idea of sending the case back to Melgren.

That would leave in place Kansas’ current two-tier voting system, in which voters who register with the federal form are excluded from state and local elections and allowed only to vote on federal candidates for Congress and president.

This is not entirely accurate. Earlier this year in a separate lawsuit, Belenky v. Kobach, Shawnee County District Court Judge Franklin Theis denied a preliminary injunction to prevent the dual system voting in the August primary in Kansas. Theis backs Kobach over ACLU in voter ID challenge. This case is still proceeding on the merits, and the Judge must consider the ACLU claims under the 14th Amendment.

A ruling that the commission’s staff doesn’t have authority to decide Kansas’ request would basically take the case back to square one, where the state can’t get a definitive decision on its request until commissioners are appointed, Kobach said.

“It’s a catch-22: Here’s the process, but the process is impossible,” he said.

The “roadmap” to this process was devised by U.S. Supreme Court Justice Antonin Scalia in Arizona v. The Inter Tribal Council of Arizona, Inc., 570 U.S. __ (2013).