[Image courtesy of ksd.uscourts.gov]
Yesterday, a federal judge in Wichita ruled in favor of the states of Kansas and Arizona in their lawsuit against the U.S. Election Assistance Commission (EAC). As a result of the ruling in Kobach v. EAC, the EAC will now be required to include the states’ proof-of-citizenship requirements as part of the instructions for the federal registration form mandated by the National Voter Registration Act (NVRA). Moreover, the states will be able to enforce those requirements for all registrants using the federal form.
UC-Irvine’s Rick Hasen has a longer analysis over at Election Law Blog, but the basic holding in this case is fairly simple. Judge Eric Melgren found that while the federal government has authority over the federal form (an authority delegated to the EAC), the NVRA is silent on state voter qualifications like proof of citizenship and therefore cannot override those laws. Because he relied on the statute to resolve the case, the judge did not reach the states’ constitutional argument that the federal government never has authority to set state voter qualifications. [Pepperdine Law’s Derek Muller also has a fascinating look at the federal/state pre-emption question here.]
I’ve blogged numerous times over the last year about the case, which could have a significant impact on election laws in other states.
As usual, what’s most interesting (at least to me) is what’s next. Here’s a short list:
- Does the EAC appeal in an effort to revive its authority to control the federal form and the accompanying instructions – and if so, do they prevail?
- Does the appeal make its way back to the Supreme Court and give Justices another opportunity to delineate federal and state election law responsibilities as they did in last summer’s opinion in Arizona v. Inter Tribal Council?
- Do more states enact proof-of-citizenship requirments as a result?
- Does the case give more incentive for states to consider online voter registration, which usually includes an eligibility/citizenship check as part of the process?
- What happens to the thousands of voters in who applied using the federal form before the lawsuit was decided? Can the states (and if so how) enforce the proof-of-citizenship law in time for those voters to cast ballots in this year’s election?
This is a big deal and is likely the starting gun for another round of disputes across the nation. Stay tuned!