JURIST Guest Columnist Michael T. Morley of Barry University School of Law discusses the recent Newby case in regard to the necessity of proof-of-citizenship required by Alabama, Georgia and Kansas …

Citizenship, a time-honored concept that traces back to the world’s earliest republics, is generally accepted as a legitimate requirement for membership in a political community. Most people agree that only US citizens should be permitted to participate in federal, state and local elections in the US. Despite broad agreement about this seemingly uncontroversial premise, deep rifts exist over whether states should be permitted to take meaningful action to ensure that non-citizens do not inadvertently or deliberately register to vote or go on to cast ballots. In its recent ruling in League of Women Voters of the United States v. Newby [PDF], the DC Circuit continued the trend of invalidating reasonable, narrowly tailored measures aimed at limiting the vote to US citizens on the grounds they were purportedly not “necessary.”

A. The National Voter Registration Act Requires States to Accept the “Federal” Voter Registration Form Created by the US Election Assistance Commission

As I have explained at greater length elsewhere, the Constitution grants Congress power to regulate federal elections, but not to determine voter qualifications for those elections. Rather, states have the constitutional prerogative to determine the requirements a person must satisfy to be eligible to vote, though a person cannot be denied the right to vote based on race, gender or age, for those who are at least 18 years old. Every state in the nation has exercised this power to limit the right to vote in state and federal elections to US citizens.

In 1993, Congress enacted the National Voter Registration Act (“NVRA”) to increase voter participation. It requires states to “accept and use” the “federal” voter registration form created by the US Election Assistance Commission (“EAC”) to register people to vote in federal elections. The EAC’s federal registration form [PDF] does not require a person to provide proof of citizenship in order to register. Rather, a person need only check a box confirming his or her citizenship.

Concerned that this parchment barrier is insufficient to deter or prevent non-citizen voting, the State of Arizona required people who registered using the form to provide documentary proof of citizenship—such as a copy of a birth certificate, passport, or naturalization papers—before their registration was deemed complete. In Arizona v. Inter Tribal Council of Arizona, Inc. [PDF], the Supreme Court held that the NVRA requires states to accept the EAC’s federal registration form as sufficient, on its own, to register people to vote in federal elections. States may not require people to submit documentation in addition to the form to confirm their eligibility to vote.

The Court recognized, however, that “it would raise serious constitutional doubts if a federal statute precluded a State from obtaining the information necessary to enforce its voter qualifications.” It noted that the NVRA allows a state to ask the EAC to “alter the Federal Form to include information the State deems necessary to determine eligibility.” If the EAC refuses, the state may sue to demonstrate that the EAC is “under a nondiscretionary duty to include [the state’s] concrete evidence requirement on the Federal Form” because “a mere oath will not suffice to effectuate its citizenship requirement.” The court emphasized that a state could also assert “that it would be arbitrary for the EAC to refuse to include [its] instruction when it has accepted a similar instruction requested by Louisiana.” Thus, the court laid out a compromise: states had to accept the federal registration form, but the EAC could be required to amend the form to require proof of citizenship.

B. Newby Undermines State Citizenship Requirements for Voting

Initially, the EAC did not take the hint. It rejected requests from three states to include state-specific instructions with the federal registration form that directed applicants from those states to provide documentary proof of citizenship with their applications. The EAC held that such a requirement was not necessary—in the sense of being absolutely, unavoidably essential—to prevent non-citizens from voting, because states could instead take applicants at their word when they claim to be citizens on the form, or threaten to prosecute non-citizens who vote. The EAC held [PDF] that the “small numbers of…noncitizens” who had successfully registered in those states was insufficient to establish a need for additional safeguards. The Tenth Circuit upheld these determinations, and the Supreme Court denied review.

Shortly after certiorari was denied, Georgia, Kansas and Alabama submitted new requests to the EAC to have the federal registration form’s instructions changed. Due to vacancies on the commission, Executive Director Brian Newby considered the requests and, as contemplated by Inter Tribal Council, granted them. The League of Women Voters and several other left-wing groups immediately sued, seeking a temporary restraining order to prohibit the EAC from changing the instructions. Remarkably, the Obama Administration’s Justice Department (“DOJ”) refused to even attempt to defend Newby’s actions. Instead, the DOJ not only joined in the plaintiffs’ reques, but went even further and asked the court to enter a preliminary injunction against the revisions. Kansas Secretary of State Kris Kobach, as well as the Public Interest Legal Foundation, were permitted to intervene to defend Newby’s actions.

The district court refused to issue a preliminary injunction on the grounds that the plaintiffs had failed to show that including the revised instructions on the federal form would cause irreparable injury. The DC Circuit reversed [PDF] in a 2-1 decision. Chief Judge Judith W. Rogers and Senior Judge Williams held that the revised instructions, requiring people to provide documentary proof of citizenship to register to vote, inflicted “irreparable injury” on the plaintiff organizations by making it more difficult for them to register people. The court made this ruling in a single conclusory paragraph, without citing any authorities for the dubious proposition that additional administrative or paperwork burdens constitute the sort of irreparable harm for which interim injunctive relief is available.

The heart of the court’s opinion was its conclusion that Newby’s actions were likely to be held invalid because he did not expressly consider whether changing the instructions was “necessary” to prevent non-citizen voting. Again, the court construed the word “necessary” to mean absolutely, unavoidably required, without considering the legislative history of the term, precedents construing that term in other statutes more liberally, or its use in other, comparable laws. Senior Judge A. Raymond Randolph dissented, recognizing that having “to spend more time and money in their registration drives” does not constitute irreparable injury entitling the plaintiffs to a preliminary injunction. Moreover, he held that the Constitution prohibited the EAC from preventing states from enforcing their voter qualification laws by refusing to direct voters to provide proof of citizenship with their federal registration forms.

C. “Necessity,” Non-Citizen Voting and the NVRA

One major issue at the heart of Newby and other litigation concerning the EAC’s federal voter registration form is what a state must prove in order to have the form’s instructions changed. The NVRA provides that the form may require only such “information . . . as is necessary to enable the appropriate State election official to assess the eligibility of the applicant.” The EAC and the courts [PDF] that have sided with it have construed the term “necessary” strictly, to mean absolutely, indispensably required. The alternatives that the EAC and courts have been willing to accept as sufficient to defeat any such claimed necessity—simply asking applicants to check a box on the registration form to confirm their citizenship, threatening to prosecute non-citizens who can be shown to have willfully broken the law—are unsatisfactory and ineffective alternatives to a simple, objective, ex ante proof-of-citizenship requirement.

As far back as McCulloch v. Maryland, the Supreme Court has recognized that the term “necessary”—especially when devoid of modifiers such as “absolutely”—often does not mean “indispensable” when used in the legal context, but rather “reasonably useful.” As the court explained:

If reference be had to its use, in the common affairs of the world…we find that [the word “necessary”] frequently imports no more than that one thing is convenient, or useful, or essential to another. To employ the means necessary to an end, is generally understood as employing any means calculated to produce the end, and not as being confined to those single means, without which the end would be entirely unattainable…. The word “necessary”…admits of all degrees of comparison; and is often connected with other words, which increase or diminish the impression the mind receives of the urgency it imports. A thing may be necessary, very necessary, absolutely or indispensably necessary.

Courts often interpret the word “necessary” in federal statutes such as the Americans with Disabilities Act in this more flexible sense [PDF]. Nothing in the NVRA’s legislative history supports the extreme interpretation that the EAC and Newby have adopted.

Opponents of proof-of-citizenship requirements frequently contend that proof-of-citizenship requirements are unnecessary because non-citizens are too scared to draw attention to themselves by registering to vote, and have little to gain by doing so. Such theoretical arguments ring hollow in light of the fact that hundreds of non-citizens have been found registered to vote in states such as Florida and Arizona. Moreover, non-citizens have repeatedly been willing to publicly identify themselves as undocumented immigrants in political protests or when making highly publicized political speeches at graduation ceremonies, before congressional committees, and even at the internationally televised Democratic National Convention. Indeed, First Lady Michelle Obama invited an undocumented immigrant to sit in her box at the 2013 State of the Union address. In light of President Barack Obama’s general reluctance to enforce federal immigration law—as exemplified by his Deferred Action for Childhood Arrival (“DACA”) and Deferred Action for Parents of Americans (“DAPA”) programs—as well as the numerous “sanctuary cities” that refuse to cooperate in the enforcement of immigration laws, at least some undocumented immigrants do not appear concerned with drawing public attention to themselves and may not believe they face a realistic threat of deportation. Particularly if energized by prevailing notions on the left that immigration laws and voting restrictions are unjust, it is quite conceivable that undocumented immigrants or other non-citizens may be inspired to register and vote.

Much greater than the threat of deliberate fraud, however, is the perpetual possibility of ordinary bureaucratic mistakes. Non-citizens may inadvertently be encouraged to vote by overzealous participants in voter registration drives—particularly if those conducting the drives are required to meet registration quotas or are paid based on the number of completed registration forms they submit. Non-citizens who do not read English well or are simply not paying close attention reasonably may misunderstand the federal registration form’s question concerning citizenship or answer it incorrectly. And such errors are highly unlikely to be caught and corrected afterwards. The NVRA imposes strict limits on when states may update their voter registration lists, the circumstances under which they may correct mistakes, and even the process they must use to do so. Thus, as interpreted in cases such as Newby, the NVRA not only requires states to register people to vote in federal elections without confirming their eligibility, but also makes it difficult for them to remove ineligible non-citizens from their voter rolls.

In short, requiring applicants to provide proof-of-citizenship is a common-sense backstop to help prevent the types of routine errors that inevitably arise when millions of people are filling out a particular form. In that sense, a proof-of-citizenship requirement is “necessary to enable the appropriate State election official to assess the eligibility of the applicant.” Newby (Brian) got it right; Newby (DC Circuit) got it wrong.

Michael T. Morley is an Assistant Professor of Law at Barry University School of Law. He teaches Contracts, Remedies and Election Law. His work has been quoted by the Supreme Court and he was counsel of record in the Court for Shaun McCutcheon in the landmark First Amendment case McCutcheon v. FEC.

Suggested citation: Michael T. Morley, Newby and Necessity, JURIST – Forum, Oct. 4, 2016, http://jurist.org/dateline/2016/10/Michael-Morley-Newby-Necessity.php