A Federal judge sounded skeptical Monday about a request from voting and civil rights’ groups to block a Federal official’s decision to embrace requirements in three states that new voters submit proof that they’re U.S. citizens.
During a 90-minute hearing, U.S. District Court Judge Richard Leon repeatedly asked about past and upcoming registration deadlines in Alabama, Georgia and Kansas, suggested that the parties who brought suit earlier this month may have acted too slowly and seemed focused on the fact that only a small percentage of voters register in any given year.
Kobach also argued that the 2014 decision by the then, Director of the election panel, was essentially ghost written by lawyers in the Civil Rights Division of the Justice Department. “It appears the Department of Justice decided they were going to take the helm at this unmanned ship and commandeer it,” he said.
Justice Department lawyer Galen Thorp said that didn’t create a concern for the department. “We believe there is no conflict,” he said.
While the judge said he would not rule until today on the temporary restraining order requested by the League of Women Voters, the NAACP, and voter registration organization Project Vote, the thrust of his questions to several lawyers hinted that he was inclined against granting the order.
The attorney arguing for the voter and civil rights groups, Michael Keats, pulled no punches in his presentation arguing that Federal Election Assistance Commission Executive Director Brian Newby exceeded his authority and acted arbitrarily when he granted requests from the three states to change a Federal motor voter form's instructions to include those states' demands for proof of citizenship at the time of registration. "This is a mockery rulemaking," Keats told Leon. "This is not Russia. This is not Nazi Germany. We provide reasons. We explain our decisions.....We don't do this is in this country....This is not how it works."
A Supreme Court ruling in 2013 said Arizona and other states could apply to the board for permission to make changes to the registration form. A subsequent court decision ordered the board's then-acting Executive Director to make a decision on such applications, which was rejected in early 2014. Several weeks ago, Newby effectively reversed that stance.
The court hearing Monday began with some drama as Leon read aloud a letter from one commissioner and Newby noting that the Justice Department declined to defend Newby's action and advised the panel that it does not have authority under Federal law to retain its own counsel.
Leon called "unprecedented" the Justice Department's decision to agree to a preliminary injunction blocking a Federal official's decision. "I've never heard of it in all my years as a lawyer," the judge said.
Leon also criticized the government for taking an incomplete position in the case, conceding that a preliminary injunction was appropriate but not addressing issues about what decisions the elections panel must make itself and which the panel's director could make on his or her own. "This is a very unusual way for the Federal Programs Branch to litigate," the judge said.
Kansas Secretary of State Kris Kobach defended his state's action in person in court Monday. He dismissed claims that many potential voters don't have physical proof of their U.S. citizenship. "Only a small number of people actually lack the necessary documents," Kobach said. He said the proof requirement is needed because it is a common occurrence for people to register to vote at the Department of Motor Vehicles even though they aren't citizens. "Accidental registration at the DMV is a huge problem all across the U.S.," he said.
Kobach said voters in his state would be able to participate in the March 5 Democratic caucuses because Democrats don't insist on proof of citizenship at that time, so those who simply complete the form would be eligible.
NYC Wins When Everyone Can Vote! Michael H. Drucker
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