Justice Department: Agency cannot require proof of citizenship on federal voter registration forms
TOPEKA — The U.S. Justice Department on Monday sided with plaintiffs in a lawsuit seeking to block a federal agency from requiring Kansas voters to show proof of U.S. citizenship to register to vote using a federal form.
"The United States concedes that, because the challenged actions were not made on the basis of the (National Voter Registration Act’s) 'necessity' criterion, defendants cannot succeed on the merits," the Justice Department said.
Under the NVRA, also known as the federal "motor voter" law, the Department said, the EAC's executive director, Brian Newby, did not make the required finding that the amended form is “necessary to enable the appropriate State election official to assess the eligibility of the applicant and to administer voter registration and other parts of the election process.”
Meanwhile, though, the conservative Public Interest Legal Foundation filed a motion seeking to intervene in the case to defend the EAC's action.
“The Obama Justice Department has shown a clear hostility towards ensuring voter integrity,” said J. Christian Adams, president and general counsel for the Foundation. “Non-citizens have participated in American elections and instead of seeking to prevent it, the Department of Justice enables it. Too much is at stake in 2016 to allow this to continue.”
Both documents were filed in response to a lawsuit by the American Civil Liberties Union, the League of Women Voters and other state and national voting rights advocates who are seeking to block the U.S. Election Assistance Commission from issuing federal voter registration forms that would require voters in Kansas and two other states to show proof of citizenship.
On Saturday, speaking at the Kansas Republican Party's state convention in Overland Park, Secretary of State Kris Kobach said he would also seek to intervene in the case, and he referred to the ACLU and League of Women Voters as "communists."
Kansas law currently requires voters to show proof of citizenship to register, but until recently that only applied to voters who attempted to register using the state's voter registration form.
The EAC initially declined to provide Kansas and other states with amended federal registration forms. The 10th Circuit Court of Appeals upheld that decision, and last year the U.S. Supreme Court declined to review the case.
In 2014, Kansas Secretary of State Kris Kobach, who championed the proof of citizenship law, implemented a policy allowing voters who registered using the federal form to vote only in federal elections. The only people allowed to vote in state and local races were people who registered using the state form.
In January, though, a district court judge in Topeka struck down that policy, saying Kobach had no legal authority to maintain separate voter registration rolls or administer "bifurcated" elections. That case is now on appeal.
A few weeks later, though, EAC's new executive director, Brian Newby, acted unilaterally to grant requests from Kansas, Alabama and Georgia to provide them with amended federal forms asking for proof of citizenship.
Before being hired at the EAC, Newby had been Kobach's appointed election commissioner in Johnson County.
The lawsuit challenging Newby's action is pending in U.S. District Court in Washington, D.C.
Two other federal lawsuits challenging the proof of citizenship law are pending in federal court in Kansas. Those include a suit by former state Rep. Paul Davis and other attorneys seeking to overturn the proof of citizenship law as unconstitutional.
Another suit, filed by the ACLU, seeks to block the Department of Revenue's Division of Vehicles from using the state form when people register to vote as they're applying for or renewing their driver's license.
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