JURIST Guest Columnist Ciara Torres-Spelliscy of Stetson University College of Law discusses how Kansas, Georgia and Alabama pushed forward with efforts to require additional proof of citizenship by new registrants, despite the Supreme Court decision on invalidating state’s requirements on proof of citizenship beyond the federal requirements…

In my new book Corporate Citizen? I contend that corporate political rights have expanded too far through Supreme Court cases like Citizens United and Bellotti. I argue that the best antidote to corporate political power is empowering flesh and blood American voters.

Sadly since Bush v. Gore in 2000, many states have done just the opposite: making it harder for voters to exercise the franchise. But fortunately, voting rights advocates have been actively fighting to protect voters’ rights in court. In September 2016, there was a significant win for voters in League of Women Voters v. Newby [PDF] in the D.C. Circuit Court.

Here’s the background of the Newby case. Kansas, Georgia and Alabama have been trying to make voting harder for voters through a series of restrictive voter ID laws. Another approach of these states has deployed is forcing voters to produce documentary evidence that they are American citizens when they register to vote.

Asking for documentary proof of citizenship may sound reasonable enough, at first blush, but this runs afoul of the federal “motor voter” law which bars states from asking for additional information when voters register to vote using a standard federal form. The whole point of the motor voter law (whose formal name is National Voter Registration Act of 1993), was to make it easier for eligible Americans to register to vote when they were at the local DMV.

While the legislators who pass these restrictive voting laws may think they are barring non-citizens from voting, instead these laws can disenfranchise regular Americans, especially those who were born at home instead of a hospital. These Americans may find it difficult, or well neigh impossible, to produce documentation of their birth proving that they are who they know they are: American citizens.

Arizona tried a similar tactic of asking for proof of citizenship from new registrants, but the state was rebuffed by the Supreme Court. The court held in Arizona v. Inter Tribal Council of Arizona, Inc., 133 S. Ct. 2247 (2013) that the federal motor voter law preempted conflicting state law, that the state had to follow the federal law, and it could not add an additional requirement of asking for proof of citizenship without the permission of the Election Assistance Commission (EAC). The EAC later ruled that asking for additional proof of citizenship was invalid for the federal form, which already asks individuals to swear they are citizens under penalty of perjury.

Following the Supreme Court decision on Arizona’s proof of citizenship requirements, Kansas, Georgia and Alabama pushed forward with efforts to require additional proof of citizenship by new registrants. But they took the extra step of asking the Election Assistance Commission for permission to ask voters for additional proof. In an unusual move, Brian D. Newby, Executive Director of the Election Assistance Commission granted the request for Alabama, Georgia and Kansas. Voting rights advocates sued to overturn Newby’s decision.

In the meantime, the new restrictive laws had their intended restrictive effect. For example, in Kansas, according to Reuters, 14% of new registrants between 2013 and 2015, were placed on a list of ineligible voters for failure to produce the necessary documentation to prove their citizenship.

On September 9, 2016, a federal court ruled in League of Women Voters v. Newby [PDF] in the plaintiffs favor, and ordered “that the [US] Election Assistance Commission …, and anyone acting on its behalf, be enjoined from giving effect to the January 29, 2016, decisions of its Executive Director, Brian D. Newby, approving requests by Kansas, Alabama and Georgia to add a proof of citizenship requirement to the state-specific instructions that accompany the National Mail Voter Registration Form…”

Perhaps one reason why the plaintiffs won was the Department of Justice (DOJ), which would typically be expected to side with the federal agency, sided with the plaintiffs instead. In the DOJ’s brief, the government encouraged the court to enjoin the actions of EAC’s Newby because “in deciding to include the states’ documentary proof of citizenship requirements on the federal form, the Executive Director [Newby] did not make the determination that this information was ‘necessary to enable the appropriate State election official to assess the eligibility of the applicant and to administer voter registration and other parts of the election process.’ 52 USC. § 20508. Because the National Voter Registration Act permits only information satisfying this ‘necessity’ requirement to be included on the federal form, the Executive Director’s decisions are not consistent with the statute.”

The good news is that unless this case is overturned by a Supreme Court which is currently split 4-4, and therefore unlikely to have the five votes necessary to dislodge this case, voters in Alabama, Georgia and Kansas who would have unable to vote in the presidential and other federal elections, can vote.

Despite this victory for voters, Kansas voters may still be negatively impacted by Kansas’s restrictive efforts. While the Newby ruling applies to federal elections, Kansas is still trying to keep voters who can’t produce documentary proof of citizenship from voting in state and local elections. Though in a late breaking ruling, a court has halted this latest effort of Kansas to thwart voters in local and state elections. So the battle continues to allow every American voter to vote without impediments.

American citizens need voting to be easier, so that the American people can make their choice of elected representatives from local races to the presidency. They have to make that choice in an echo chamber of noisy political ads bought by corporate-backed super PACs, thanks to Citizens United. The way to lessen the impact concentrated wealth in our elections is put as few barriers in the way of real (human) citizens casting ballots. The Newby decision is an important step in the correct direction of restoring voters to their rightful place at the center of our democracy.

Ciara Torres-Spelliscy is an Associate Professor of Law at Stetson University College of Law and a Brennan Center Fellow. She is the author of Corporate Citizen? An Argument for the Separation of Corporation and State.

Suggested citation:Ciara Torres-Spelliscy, What’s the Matter with Kansas: the Voting Edition, JURIST – Forum, Sep.29, 2016, http://jurist.org/forum/2016/09/Ciara-Torres-Spelliscy-Kansas-Voting.php