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Federal Government Required to Assist States with Discriminatory Voter Laws

by: Edward Garris

Mon Mar 24, 2014 at 11:30 AM CDT

In case you missed it, last week, a federal judge in Kansas ordered the federal government to comply with states' requirements concerning voter identification.


Yep.  Last week, a federal court in Kansas held that if states requested the federal government to add state-specific instructions to a federal voter registration form, then the federal government must do so.  That's right.  The states can tell the federal government what to do.

As a practical matter, this means that states wishing to enlist the aid of the federal government in promulgating discriminatory and disenfranchising voter identification laws can do so.  

The decision was the result of a tangled history of laws in Kansas and Arizona as well as a 2013 U.S. Supreme Court decision.  Kansas and Arizona passed laws requiring proof of citizenship before an individual could register to vote.  Federal voter registration forms require only an attestation or sworn statement by the individual that he or she is, in fact, a citizen.  Kansas and Arizona had asked the federal Election Assistance Commission (EAC) to include instructions concerning their more onerous registration requirements on the federal form; the EAC refused. This case ensued.

To learn how the states won this power, read below the jump.

The New York Times summarizedthe case thus:

"The Supreme Court ruled last June that Congress holds full power over federal election rules, but indicated that states could require proof of citizenship in state and local elections. Federal rules require prospective voters only to sign a form attesting to their citizenship, a procedure favored by Democrats who want to increase participation of minorities and the poor in elections, but that Republican officials say fosters voter fraud.

In his ruling, Judge Melgren, appointed to the bench by President George W. Bush, characterized the decision by the election commission to deny the states' requests as "unlawful and in excess of its statutory authority." He said that Congress had not "pre-empted state laws requiring proof of citizenship through the National Voter Registration Act."

Rick Hasen of UC Irvine, on his Election Law Blog, provided a useful backgrounderon the issue:

"In 1993, Congress passed the National Voter Registration Act (or "motor voter"), which makes a number of changes at issue in federal elections. Among other things the law requires that states must accept from voters voter registrations submitted on a federal form for voting in congressional elections. Preparing this form used to be the responsibility of the Federal Election Commission, but when Congress created the U.S. Election Assistance Commission as part of its Help America Vote Act after the 2000 contested presidential election, it shifted responsibility for preparing the form to the EAC. The federal form approved by the EAC is a relatively simple form, and those who register voters like to use it for voter registration not only because it is easy, but because it is uniform across the country. Democratic-aligned groups like the federal form a lot.

Arizona had been fighting with the EAC for a while over whether the federal form has to require citizenship information for those who vote to register in Arizona. The EAC did not require such information (in fact deadlocking on the question a while back, in a story I tell in The Voting Wars.)  The dispute with Arizona eventually made it to the Supreme Court, which issued an opinion last year in Arizona v. Inter-Tribal Council. In the case, the Supreme Court held that under the NVRA Arizona had to accept the federal form for voter registration, even without a proof of citizenship requirement."

Hasen goes on to argue that the Inter-Tribal decision, rather than providing much-needed clarity, muddies the waters by upholding the federal government's power to set the manner of conducting federal elections, while recognizing the individual states' power to establish qualifications to vote.  Even more confounding, in the Inter-Tribal decision, Justice Scalia not only rejected Arizona's argument in that case; he also told them what to do to get it past the Supreme Court.  So much for impartial judges and intellectual integrity.  

We'll see if last week's decision and the states' power over the federal government holds up on appeal.  

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