[EL] Has the EAC Capitulated to Kansas on Proof of Citizenship for Voting?

[David Levine]

Rick,

I don't have any direct knowledge about the actions taken by EAC that you
recently referenced, but I think that folks should consider a few
additional things as they consider your email about the EAC and the
questions you posed.

1) Whenever the EAC has had commissioners, they have been involved in these
decisions, so I would be very surprised if Mr. Newby acted alone here. In
fact, a previous Executive Director had to write a memorandum on how the
EAC should respond to similar state inquiries when it was *without*
Commissioners, so I would very surprised if the letters were written
without the Commissioners' approval.

2) In addition to Mr. Newby and the Commissioners, I would be curious about
what role the new EAC General Counsel, Cliff Tatum, played in these letters
since there were likely legal considerations made before these letters were
sent. In addition to being the EAC's chief legal officer, Mr. Tatum
previously served as the Interim Director of the Georgia State Elections
Division and Assistant Director of Legal Affairs for the Georgia Secretary
of State.

3) What feedback was provided to the EAC by local and state election
officials before these letters were sent? For example, were there more
elections officials expressing concern about maintaining a dual voter
registration system of sorts (one set of standards for the federal voter
registration form and another for the state voter registration form)? What,
if any, recent public comments did Georgia and Kansas election
administrators (or any other administrators) submit in support of their
states' requests to add documentary proof of citizenship requirements to
its state-specific instructions on the Federal Form.

4) The Department of Defense Federal Voting Assistance Program has granted
at least one state's request (Arizona) that I can think of to add
documentary proof of citizenship requirements to the Federal Post Card
Application. What impact would a decision like this have had on the EAC's
recent letters to Kansas and Georgia?

5) The NVRA directs the EAC to develop the federal form "in consultation
with the chief election officers of each states." Though the EAC is free to
grant, deny, or defer actions on state requests (as long as its actions are
consistent with the NVRA and applicable federal law), its no secret that
the EAC has had several close calls in the past, with regards to its
staffing, funding, and even mere existence. And on July 12, 2015, the
National Association of Secretary of State reaffirmed their resolution of
2005 and 2010, and encouraged Congress not to reauthorize or fund the U.S.
Election Assistance Commission.

6) Has the EAC received persuasive evidence recently from Georgia, Kansas,
or someone else demonstrating that requiring additional proof of
citizenship is necessary to enforce citizenship requirements. Previously,
the EAC and the 10th Circuit  of Appeals had found that this was the not
the case, finding, among other things, that the possibility of potential
fines, imprisonment, or deportation were effective deterrents, and that the
registration of non-citizens was not a significant problem.


David



On Mon, Feb 1, 2016 at 12:43 PM, Rick Hasen <rhasen at law.uci.edu> wrote:

> Has the EAC Capitulated to Kansas on Proof of Citizenship for Voting?
> <http://electionlawblog.org/?p=79487>
> Posted on February 1, 2016 9:15 am <http://electionlawblog.org/?p=79487>
> by Rick Hasen <http://electionlawblog.org/?author=3>
>
> There’s been a longrunning battle between the U.S. government and KS (and
> Arizona) over whether those states need to accept the “federal form” to
> register voters in federal elections. These states did not want to accept
> the federal form for voting because the form, unlike each state’s regular
> voter registration forms, did not require documentary proof of citizenship
> before voting.
>
> After a bunch of litigation, where things stood until recently was: these
> states had to accept the federal form for voting in federal elections. KS
> took the position that it did not have to allow voting by those using the
> federal form in *state* elections.  A state court recently rejected this
> two-tiered voting system, but the issue was on appeal.
>
> But now the EAC his issued this letter
> <http://www.eac.gov/assets/1/Documents/KS%20-%20Elec.%20Dir,%20NVRA,%201-29-16.pdf> which
> indicates the EAC has agreed to include the following state specific
> information about registering in KS. Within 90 days, one must provide KS
> election officials with documentary proof of citizenship (from a list
> provided) in order to have one’s registration accepted. (There’s a similar
> letter
> <http://www.eac.gov/assets/1/Documents/GA%20SOS%20-%20NVRA,%201-29-16.pdf>
>  approved from Ga.)
>
> I could be wrong, but this appears to be a capitulation by the EAC, which
> will now lead to disenfranchisement of anyone who registers with the
> federal form but does not provide the documentary proof of citizenship
> within 90 days.
>
> Is this right? Has the EAC capitulated? Why?
>
> UPDATE: One question is whether EAC executive director Brian Newby,
> himself from KS, acted on his own or with the agreement of the three EAC
> commissioners. Inquiring minds want to know.
>
> --
> Rick Hasen
> Chancellor's Professor of Law and Political Science
> UC Irvine School of Law
> 401 E. Peltason Dr., Suite 1000
> Irvine, CA 92697-8000949.824.3072 - office949.824.0495 - faxrhasen at law.uci.edu
> hhttp://www.law.uci.edu/faculty/full-time/hasen/http://electionlawblog.org
>
>
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