The Independent View: Federal Voter Registration Form Can Require Documents to Prove Citizenship

On March 19, U.S. District Court Judge Eric Melgren, a George W. Bush appointee, issued an opinion in Kobach v U.S. Election Assistance.

The opinion determines that Kansas and Arizona are free to require that individuals who use the federal voter registration form must attach documents that prove they are citizens.

Specifically, the decision orders the U.S. Election Assistance Commission to amend the federal forms in use in Kansas and Arizona, so that the instructions on the forms used in those states explains to applicants that the paperwork is needed.

In today’s decision, the federal district court makes three essential moves.

1. The judge expresses doubt, without resolving the question, whether the Executive Director of the EAC had the authority to decide this question. The court said it was not necessary to resolve the question because even if the EAC had a full set of commissioners and voted 4-0 to reject Arizona’s request, the EAC would still lose for other reasons.

2. The judge expresses doubt, without resolving the question, whether Congress would have the authority in the NVRA to pass a law about voter registration which would block states from collecting information, such as citizenship information, necessary to verify voter qualifications. Again, it said it did not reach the issue.

3. The judge concludes that Congress in the NVRA did not expressly preempt states from requiring citizenship information (if it did, it would raise serious constitutional questions about the NVRA). In the absence of express preemption, and in light of the doubtful constitutional power to prevent states from collecting this information, the EAC was without power to deny Arizona and Kansas their request to include the information on the federal form.

UPDATE
Alabama, Georgia, and South Carolina will start a review of adding citizenship documentation to their voter registration process.

CLICK HERE to read the opinion.

We now will have to watch as this decision goes through the appeal process.