The Independent View: EAC’s Brian Newby Sued for Citizenship Form Decision

Last June, the U.S. Supreme Court turned down a petition from Arizona and Kansas to hear Kobach v. United States Election Assistance Commission, thereby letting stand a 10th Circuit ruling that the states may not force applicants using the Federal voter registration form to show citizenship documents.

So Arizona and Kansas implement a Two-Tiered Voting System. If you used the state form which required proof of citizenship, you could vote in Local, State, and Federal elections. But if you used the Federal form, you could only vote in Federal elections.

A state court has struck down Kansas' two-tiered voter registration system, ruling that Secretary of State Kris Kobach's office overstepped its legal authority by creating a system that prevents Federal form registrants from voting in state and local elections. The American Civil Liberties Union challenged the dual system.

U.S. Election Assistance Commission (EAC) Executive Director Brian D. Newby’s action to allow three states to require documentary proof of citizenship on the Federal voter registration form is illegal, argued the League of Women Voters of the United States, along with its Alabama, Georgia, and Kansas state Leagues, and others in a suit filed on Feb. 12, 2016, in Federal court.

The Georgia NAACP, the Georgia Coalition for the People’s Agenda, and Project Vote, along with Marvin Brown and JoAnn Brown, also join the suit against the (EAC).

“Voters should not have to face an obstacle course in order to participate in our democracy,” said Elisabeth MacNamara, National League president. “We had hoped that a reconstituted EAC would focus on improving election administration. This action by the Executive Director would make the election system worse. His action challenges the impartiality of the Commission.”

Research shows 7 percent of voters do not have documentary proof of citizenship, and tens of thousands of Kansans have been blocked from registering to vote in the state.

On January 29, 2016, Newby sent letters to the Secretaries of State of Alabama, Georgia, and Kansas stating, without further explanation, that he would allow the three states to require citizenship documents for applicants using the federal registration form.

The Executive Director did not have authority to allow the three states to enforce documentary proof of citizenship requirements on the Federal form, and doing so violated both EAC policy and Federal law, according to a complaint submitted by the Brennan Center for Justice at NYU School of Law with pro bono counsel at Stroock & Stroock & Lavan LLP; the Lawyers’ Committee for Civil Rights Under Law and the American Civil Liberties Union with pro bono counsel Steptoe & Johnson LLP; and Project Vote with pro bono counsel Arnold & Porter LLP.

If the documents, such as birth certificates or passports, are not provided, Americans will be denied the fundamental right to vote. The federal form is designed to guarantee a “simple means of registering to vote,” and already requires applicants to swear that they are U.S. citizens under penalty of perjury.

Documentary proof of citizenship requirements undermine the groups’ efforts to increase civic participation and make it more difficult for individuals to vote, according to the court filing. “This change was unauthorized and illegal, and is hugely detrimental to voters in Alabama, Georgia, and Kansas,” said Wendy Weiser, director of the Brennan Center’s Democracy program and representation for the Leagues in this case. “With presidential primaries fast approaching, these citizens deserve clarity on how — or if — they can register to vote. This will bring unneeded confusion and uncertainty during this presidential election year.”

In an interview earlier this week, Kobach defended the move and Newby’s authority to issue it. He denied that it was any special favor from a former colleague, and said the state would have requested the proof-of-citizenship requirement no matter who stepped into the role of Executive Director of the Commission.

“We had the letter drafted long before Newby was selected and it was going to go to whoever the new executive director was,” Kobach said. “We were just waiting for an executive to be appointed, and whoever it was would have gotten the same letter.”