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

Mon Feb 1 13:47:07 PST 2016

Does anyone have any idea why Arizona would have been omitted from today's
updates to the federal form's state-specific instructions?

On Mon, Feb 1, 2016 at 3:20 PM, David Levine <davidalanlevine at gmail.com>
wrote:

> 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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>
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