[EL] Kobach v. EAC

[Rick Hasen]

    Breaking: 10th Circuit, in Major Voting Case, Rejects Kansas and
    Arizona Citizenship Proof Requirement
    <http://electionlawblog.org/?p=68115>

Posted onNovember 7, 2014 2:18 pm 
<http://electionlawblog.org/?p=68115>byRick Hasen 
<http://electionlawblog.org/?author=3>

You can read the unanimous 10th Circuit opinion in Kobach v. U.S. EAC, 
reversing the lower court,at this link. 
<http://electionlawblog.org/wp-content/uploads/kobach-eac-10th.pdf>  
Kansas and Arizona tried to force the federal government to require 
those who register to vote using a simple federal form for voter 
registration include proof of citizenship if the voter is a KS or AZ 
resident. The lower court sided with the states, but the federal 
government won with a reversal on appeal. The case could well be headed 
to the Supreme Court as a major dispute over federal versus state power 
in voting.

 From the opinion's conclusion:

    Kobach's and Bennett's argument that the states' Qualifications
    Clause powers trump Congress' Elections Clause powers is foreclosed
    by precedent. In ITCA, the Court clearly held that Congress'
    Elections Clause powers preempt state laws governing the "Times,
    Places and Manner" of federal elections, including voter
    registration laws. 133 S. Ct. at 2253. Citing the Federalist Papers,
    the Court noted that the Framers expressly rejected giving the
    states exclusive authority to regulate federal elections because
    "an exclusive power of regulating elections for the national
    government, in the hands of the State legislatures, would leave the
    existence of the Union entirely at their mercy." Id.Only the
    dissenting opinion by Justice Thomas endorses the theory that
    Arizona and Kansas press before this court. Id. at 2266-69 (Thomas,
    J., dissenting). The dissent proves the point....

    In sum, the EAC had valid authority under HAVA to subdelegate
    decisionmaking authority to its Executive Director relating to the
    contents of the Federal Form. Under the unique circumstances of this
    case (involving a quorum-less EAC), an appeal from the Executive
    Director's decision to deny the states' requests to modify the
    contents of the Federal Form was impracticable. Consequently, the
    Executive Director's decision constitutes final agency action. And
    that action---which fell within the bounds of the subdelegation that
    the EAC issued when it had a quorum---was procedurally valid.

    Contrary to Kobach's and Bennett's claims, the NVRA does not impose
    a ministerial duty on the EAC to approve state requests to change
    the Federal Form. The Executive Director's denial of the states'
    requests survives our APA review, and the states' constitutional
    claims are unavailing. We therefore REVERSE the ruling of the
    district court and REMAND the case to the district court with
    instructions to vacate its order instructing the EAC to modify the
    Federal Form.

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Posted inelection administration 
<http://electionlawblog.org/?cat=18>,Election Assistance Commission 
<http://electionlawblog.org/?cat=34>,Elections Clause 
<http://electionlawblog.org/?cat=70>,Supreme Court 
<http://electionlawblog.org/?cat=29>,The Voting Wars 
<http://electionlawblog.org/?cat=60>

-- 
Rick Hasen
Chancellor's Professor of Law and Political Science
UC Irvine School of Law
401 E. Peltason Dr., Suite 1000
Irvine, CA 92697-8000
949.824.3072 - office
949.824.0495 - fax
rhasen at law.uci.edu
http://www.law.uci.edu/faculty/full-time/hasen/
http://electionlawblog.org

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