Kansas' decision to implement a two-tiered system for voter registration is a rationaland perfectly legalresponse to a lawless situation that it did not create. Its decision must be understood within the larger context of the ongoing battle between the Obama administration and the states over the enforcement of both our immigration laws and our election integrity laws.
Bluntly put, the administration has drastically scaled back, and to some extent abandoned, its immigration-related enforcement efforts. Worse, it has started lawsuits against states that seek to take up the slack by enforcing federal immigration laws within their borders. US Senator Jeff Sessions has put together a helpful timeline of the Obama administration's "War on Immigration Enforcement." It is worth reading in its entirety, but to get a sense of this administration's priorities a few highlights stand out:
In 2009, the Deputy Assistant Secretary of Homeland Security told employers and pro-amnesty groups that "we're not doing raids or audits under this administration." In January 2012, a report by the Inspector General revealed that officials of the US Citizenship and Immigration Service (USCIS) pressured employees to approve applications that should have been denied. In April 2012, the administration announced that it would reduce National Guard troops stationed at the border from 1,200 to 300. That same month, Immigration and Customs Enforcement (ICE) officials offered to voluntarily close over 16,500 deportation cases pending background checks. In December 2012, ICE implemented an astonishing new policy that barred its agents from detaining unlawfully present aliens for illegally entering the country or for having false papers. Thereafter, they could be detained only for the commission of (another) crime. In February 2013, the USCIS released statistics showing that deferred action had been granted (at that point) to 199,460 unlawfully present aliens. And on and on.
In one policy action after another, the relevant officials made enforcement weaker, detention harder, and de facto amnesty more common. The administration stood idly by while local policies were enacted for the same purpose. For example, the Obama administration ignored decisions by the District of Columbia to stop enforcing immigration laws and by New York City and Los Angeles to ignore ICE detainers. However, if a state sought to more actively enforce immigration efforts, the Department of Justice (DOJ) sprang into action. The DOJ sued Arizona, Alabama and Utah to stop their enforcement of the immigration laws.
The Obama administration also has neglected its responsibility to enforce federal election integrity laws. To prevent voter fraud and ensure elections are fair, states are obligated to coordinate voter list maintenance programs and maintain accurate state voter registration rolls under Section 8 of the National Voter Registration Act of 1993 (NVRA). While the DOJ historically has brought lawsuits and exercised its jurisdiction to ensure states are complying with Section 8, the Obama administration has failed to do so.
The administration's view of both immigration and election integrity issues was on display when the DOJ participated as a friend of the court (and argued in behalf of the plaintiffs) in Arizona v. Inter Tribal Council of Arizona, Inc. The plaintiffs there had sued Arizona over its plans to require proof of citizenship when registering with a federal voter registration form. The US Supreme Court duly held that federal officials had the authority to determine the content of that federal form. Of course, this administration has no intention of changing that form to require proof of citizenship.
That dispute is not over. The Supreme Court also held that Arizona may renew its request that federal officials include proof of citizenship in the form's state-specific instructions. Because those officials recently denied the request of Arizona, Georgia and Kansas to change the form, there may be further judicial review (PDF) of that decision.
Kansas' decision to establish a dual registration process allows it to require the proof of citizenship on its state registration forms that it cannot (yet) require on its federal forms. It is a rational decision, given the federal government's unwillingness to enforce immigration laws generally and given the Supreme Court's most recent holding in the Arizona case.
From a legal standpoint, there is nothing inherently wrong with a dual registration system. Two previous cases out of Mississippi where dual registration systems were struck down involved violations of particular laws that have no application whatsoever in Kansas. In Young v. Fordice, the issue was whether the state had passed the law without obtaining the pre-clearance required under Section 5 of the Voting Rights Act (VRA). Kansas has never been subject to the pre-clearance requirements of Section 5indeed, no state is subject to those requirements now because the trigger for Section 5 was struck down last year in Shelby County v. Holder. In Operation PUSH v. Allain, the registration system at issue was held to violate Section 2 of the VRA under a completely different set of facts with no relevance to Kansas.
No VRA claim has been (or could be) asserted against Kansas' dual registration system. The American Civil Liberties Union's (ACLU) own lawsuit (PDF) does not make a claim under the VRA or under any other federal law. Nor could such a claim be made. The Supreme Court made clear in Young that there is no inherent problem with a dual registration system, when it observed that, "[i]f Mississippi means that the NVRA does not forbid two systems and that § 5 of the VRA does not categoricallywithout moreforbid a [s]tate to maintain a dual system, we agree."
It is a fact that non-citizens have cast fraudulent ballots in US elections. In 2005, the Government Accountability Office found (PDF) that perhaps three percent of 30,000 persons called for jury duty from voter registration rolls in a single US district court were not US citizens. Instances of non-citizen voting are now a feature of every election. Michigan Secretary of State Ruth Johnson asked her attorney general to investigate ten non-citizens who voted in Michigan elections. Ohio Secretary of State Jon Husted was able to confirm that at least seventeen non-citizens voted in Ohio in the 2012 presidential election. A 2012 Philadelphia City Commissioner report (PDF) on voter fraud confirmed that nineteen non-citizens were registered in the city, with at least seven voting. A Bosnian citizen was among those illegally registering and voting in Iowa.
Kansas seeks to uphold its interest in honest elections by requiring proof of citizenship in order to register and vote in state elections. It has a legitimate interest in doing so. In Crawford v. Marion County Election Board, the US Supreme Court held that a state has an interest both in preventing voter fraud and in enhancing public confidence in the integrity of elections. Kansas' actions also will have the effect of bolstering the enforcement of federal immigration and voting laws that the Obama administration does not care to enforce.
An interesting contrast can be made with Takoma Park, Maryland, where that city, for reasons of its own, has determined that non-citizens are eligible to vote in its elections. Because non-citizens are not eligible to vote in any other Maryland elections, Takoma Park has to have a separate list to keep track of non-citizen registrations.
In other words, Takoma Park has instituted a dual registration system. Its efforts have not drawn the attention of either the DOJ or the ACLU, presumably because its system is intended to make it possible for non-citizens to vote. This suggests that the problem that the ACLU has with Kansas' system is not with the fact that it is a dual registration system, but with its purpose.
Kansas' dual registration system is both legal and sensible.
Robert Popper is a senior attorney with Judicial Watch and serves as the head of that organization's Election Integrity Project. He previously worked for eight years as Deputy Chief of the Voting Section in the Civil Rights Division of the Department of Justice, in which capacity he garnered numerous professional awards.
Suggested citation: Robert Popper, Legal and Sensible: Kansas' Dual Voter Registration System, JURIST - Hotline, Feb. 3, 2014, http://jurist.org/hotline/2014/02/robert-popper-dual-voter-registration.php.
This article was prepared for publication by Michael Muha, an associate editor with JURIST's professional commentary service. Please direct any questions or comments to him at firstname.lastname@example.org