Both states have laws requiring applicants to prove they are U.S. citizens before they are registered to vote. The federal form only requires them to swear under penalty of perjury that they are U.S. citizens.
“Because the Constitution gives the states exclusive authority to set voter qualifications under the Qualification Clause, and because no clear congressional enactment attempts to preempt this authority, the Court finds that the states’ determination that a mere oath is not sufficient is all the states are required to establish,” U.S. District Court Judge Eric Melgren said in his March 19th ruling in Wichita. (See EAC – 2014-03-19 US Dist Ct Decision Kobach v EAC.pdf)
“This is victory not only for Kansas and Arizona, but for all 50 states,” Kansas Secretary of State Kobach told CNSNews.com. “Any one of those 50 states may now choose to follow our example and require proofs of citizenship when people register to vote. There are two other states that are doing it already, Alabama and Georgia, for a total of four states.
“And I would encourage more states to do so because anytime an alien votes, it effectively cancels out the vote of a U.S. citizen.
“And you have many cases all around the country of aliens [voting], usually being manipulated by some sort of group that wants to steal an election. They’re told falsely that they are eligible to vote and then they’re coached how to vote, and it’s happening all across the country. We’re stopping it in Kansas and Arizona.”
“This decision is not just about proof of citizenship or registering to vote,” Kobach continued. “It’s about a broader issue of state authority under the United States Constitution. During the current administration in Washington during the past five years or so, we’ve seen consistent federal encroachment upon state authority.
“And unfortunately, in many of those cases, the states have not been able to fight back effectively. But in this case, the states won. We were able to assert our constitutional right to control the qualifications of people registering to vote. And it’s an important victory for states, and for states’ rights generally.”
Although both federal and state law prohibit non-citizens from voting, the Kansas and Arizona legislatures also passed laws requiring residents to produce documented proof of citizenship when they registered to vote. Both states asked the EAC to revise the federal ‘Motor Voter’ forms to reflect those changes.
Kobach requested that this sentence be added to the form: “To cast a regular ballot an applicant must provide evidence of U.S. citizenship prior to the election day.” He explained that 10 documents are considered appropriate evidence, including a U.S. birth certificate or passport, naturalization papers, and military records indicating birth on a U.S. base overseas.
Arizona Secretary of State Ken Bennett submitted a longer version, which read: “If this is your first time registering to vote in Arizona or you have moved to another county in Arizona, your voter registration form must also include proof of citizenship or the form will be rejected. If you have an Arizona driver license or non-operating identification issued after October 1, 1996, write the number in box 6 on the front of the federal form. This will serve as proof of citizenship and no additional documents are needed. If not, you must attach proof of citizenship to the form. Only one acceptable form of proof is needed to register to vote.”
However, the EAC refused to do so, claiming that under the National Voter Registration Act (NVRA), commonly known as the Motor Voter Act, states must “accept and use” federal voter registration forms for all federal elections.
The two states responded by allowing residents who did not produce proof of U.S. citizenship to vote in federal elections, but not in state or local contests. However, the American Civil Liberties Union sued, claiming that such a two-tier voter registration system violated residents’ equal protection rights.
Kobach and Bennett then filed a joint lawsuit against the EAC on Aug. 21, 2013, arguing that “a mere oath without concrete evidence of citizenship” is not sufficient to determine the eligibility of voters who fill out the federal forms. Both presented evidence in federal court showing that aliens were in fact being registered to vote in their states.
“It happens and it’s documented,” Kobach told CNSNews.com.
They asked the court to order the EAC to add the state-specific proof of citizenship requirements on the federal Motor Voter forms used in Kansas and Arizona.
“This Court also finds that it need not answer the question of whether Congress may constitutionally preempt state laws regarding proof of eligibility to vote in elections. Answering this constitutional question is unnecessary because the Court finds…that Congress has not attempted to preempt state laws requiring proof of citizenship through the text of the NVRA,” Judge Melgren noted in his ruling.
“We were very pleased with the court’s ruling,” Kobach told CNSNews.com. “We felt we had a very strong position based on the law and based on the United States Constitution, that the states have the right to control the qualifications of voters and to enforce the qualifications of voters and fortunately, the judge agreed with us.
“Our state forms already require proof of citizenship,” he added. “We have now closed the loophole, and the federal form now has to match our state forms.”