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Thursday, November 03, 2016

10th Circuit: Kansas' Documentary Proof of Citizenship Voter Registration Requirement Will Not Be Enforced

In Kansas, voters cannot simply wake up on election day and decide to vote.  There is no spur-of-the moment voting (and no mail-in ballots other than absentees).  Voting in Kansas requires forethought and planning through advance registration, and it takes showing up at the polls with a valid ID and having one's photo and signature confirmed to be a match to those on the registration -- but at least, thanks to the 10th Circuit's opinion on October 21st, it will not take documentary evidence of U.S. citizenship.

The terms of Kansas'  Secure and Fair Elections (SAFE) Act requires that "an applicant shall not be registered [to vote] until the applicant has provided satisfactory evidence of United States citizenship" according to enumerated documentation, such as a U.S. passport or a birth certificate.  Earlier this year, the League of Women Voters of Kansas, with the help of the ACLU, challenged this law as running afoul of the the National Voter Registration Act.  The District of Kansas granted a preliminary injunction against enforcement of the policy back in May, and this allowed 18,000 Kansans to vote in the state's presidential primary on August 2nd.  On appeal, the 10th Circuit, through Judge Jerome Holmes, held that the Kansas proof of citizenship voter registration law violated  the NVRA.  The NVRA protects American voters' right to vote with only supplying the "minimum amount of information necessary."  The 10th Circuit found that the minimum amount necessary does not include proof of citizenship. The court's opinion, issued on October 21, 2016, addressed the preliminary injunction only, not the merits of the case (although, of course, likelihood of success on the merits is a component of preliminary injunction oversight). (AP story on the case is here).

The court held that the Kansas government had been unable to show any significant problems with non-citizens attempting to vote, and that "it cannot be that, while intending to create a simplified form of registration for federal elections, Congress adopted such a malleable statutory principle (i.e., minimum information) that the states could effectively become the final arbiters of what is required under the NVRA by the simple expedient of claiming that one noncitizen managed to register to vote."

The 10th Circuit found adequate threat of irreparable harm (if the SAFE Act was enforced) because "over 18,000 Kansans stood to lose the right to vote in the coming general elections—elections that are less than one month away."  Of course, these 18,000 Kansas were those who had already registered to vote using the "federal form" rather than following the statutorily required proof of citizenship method.  Who knows how many people were dissuaded by the SAFE Act requirements from even attempting to register. The October 21st ruling came too late for anyone not already registered to vote: The Kansas voter registration deadline for the November 8th election was on October 18th.

The state voter information site now contains a statement (at the very bottom) explaining that "due to recent court rulings, if you have applied to register to vote at a Kansas Division of Motor Vehicles office or if you have applied to register to vote using the “Federal Form” voter registration application (as opposed to the standard ‘state form’) and have not yet provided proof of citizenship, you are registered to vote for the November 8, 2016, general election. Your name will appear on the poll book for your voting location and you will be given a standard ballot."  The online voter registration site, however, contains no reference to the 10th Circuit opinion (but, of course, it is too late for anyone not registered to become able to vote in Kansas anyway). 

(Toto, I think we're not in Washington state anymore!)

For more on this case and voting in Kansas, see here (local news story about the ruling), here (news story about one man's struggle to vote), and here (criticizing the 10th Circuit for "flipping state powers on its head and bastardizing a statute").    

Posted by Andrea Boyack on November 3, 2016 at 06:58 PM in Constitutional thoughts, Current Affairs | Permalink

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