[Image via EAC]
UPDATE: This afternoon (February 2), Commissioner and Vice-Chair Tom Hicks issued a statement asking that the letters cited below be withdrawn and submitted to the EAC for approval and vote as a policy matter. Keep staying tuned …
Few recent stories in election policy have taken more twists and turns than the saga of Kansas’ (and other states’) efforts to impose proof-of-citizenship requirements on the federal voter registration form. State officials and the EAC have been back and forth on the question numerous times, including two trips to the Supreme Court and several suits in state court. The current state of play is that proof-of-citizenship is unenforceable against voters who use the federal form, and – at least for now, pending appeal – that such requirements cannot be used in Kansas to deny voters a full ballot in state and local elections.
That story got a little stranger yesterday with news that the EAC has updated state instructions on the federal form for Kansas (see p. 8) and a few other states to include proof-of-citizenship requirements. New EAC executive director Brian Newby sent letters dated last Friday to several states, including Kansas, who had recently requested that the agency update the instructions. The letter says the requested changes have been made and notes that the EAC is launching an effort to begin “a systematic process with all states to update State-Specific Instructions regularly.” It also asks states to notify the EAC “if any additional State-Specific Instructions are in need of modernization or further calibration with your procedures.”
The timing of this action is a little curious, given the prospect of renewed partisan warfare over proof-of-citizenship just as the EAC is making progress on other fronts like voting technology and election preparedness. It also isn’t clear whether this action is an administrative matter solely within the purview of the executive director or whether it requires a vote of the Commission as a change of policy. [The Election Law Blog’s Rick Hasen asks: Has the EAC Capitulated to Kansas on Proof of Citizenship for Voting?]
What is clear is that the new instructions make the issue of proof-of-citizenship less clear, especially since the courts have ruled (and SCOTUS has declined to weigh in) that proof-of-citizenship is unenforceable. While it is in fact true that the federal form now reflects the letter of the law in Kansas and other states, I worry that language on the form (and on the website) indicating that voters “must” follow those instructions is at best misleading and at worst contrary to federal and state court rulings. The executive director may not have the authority to add a suitable disclaimer, but perhaps the Commissioners do. This kind of uncertainty is always problematic – but especially in a high-stakes presidential election year. Here’s hoping it gets clarified soon.
I didn’t think this issue could get any more complicated or less clear, but I was wrong; I’ll be interested to see what happens next.
Stay tuned …