Kansas is teaming with Arizona on a lawsuit to save controversial laws requiring people to prove they’re citizens when they register to vote.
Kansas Secretary of State Kris Kobach and Arizona Secretary of State Ken Bennett filed a lawsuit Wednesday that could bring the state laws into compliance with a ruling the U.S. Supreme Court handed down in June.
The lawsuit comes a week after the American Civil Liberties Union signaled plans to challenge the Kansas citizenship requirement, which has already blocked the registration of more than 15,000 would-be voters.
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If successful, Kobach could potentially cut off the ACLU litigation and force prospective voters to prove their citizenship with documents such as birth certificate or passport before they could vote.
The federal lawsuit, filed in Kansas, demands the U.S. Election Assistance Commission modify the federal voter registration form for Kansas and Arizona so it would allow for requiring proof of citizenship.
The form was the basis for the Supreme Court ruling that Arizona could not require proof of citizenship for federal elections.
The high court said states have to defer to a 1993 federal law, which allows people to vote using a federal form that only requires prospective voters to declare under penalty of perjury that they are citizens.
The court said federal law barred states from demanding more information from potential voters than is required by the federal form.
However, the court provided a map for making the proof-of-citizenship requirement legal, the very path Kansas and Arizona want to follow.
The court said states can ask the Election Assistance Commission to include information on their version of the federal form that the states deem necessary.
In 2005, the commission deadlocked at 2-2 on Arizona’s request to include the proof-of-citizenship requirement on the federal form, and no action was taken on the state’s request.
The Supreme Court ruled that if the commission refused to act, Arizona could take the matter up in court. It even suggested that Arizona could argue that the commission was acting arbitrarily since it recently agreed to accept a similar request from Louisiana.
Kansas has unsuccessfully tried twice to get the commission to accept its proof-of-citizenship requirements. But the state has run into problems because all four seats seat on the commission are vacant.
The agency’s staff can make decisions about modifying the federal form, but staffers believed that the Kansas request was so broad that it would require action by the commission, which is stymied because it has no members.
The lawsuit filed Wednesday contends that the agency’s refusal to act on the states’ request violates their 10th Amendment rights under the Constitution.
They also contend that the agency is assuming authority it hasn’t been given by Congress.
“It’s pretty clear that Congress did not envision this agency as having the power to effectively stop a state from controlling its own qualifications for an election,” Kobach said. “This is yet another example of the federal government interfering in state affairs.”
As of Wednesday, there were 15,109 suspended registrations in Kansas, up from 11,101 reported in June, according to the secretary of state’s office.
About 3,100 of those were people who tried to register to vote in Johnson County and another 950 that tried to register in Wyandotte County.
Doug Bonney, the ACLU’s legal director in Kansas City, said Kobach’s latest court battle will do nothing to help the people whose registrations were suspended. He said laws like the one in Kansas and two other states only keep people out of the voting booth.
“The problem was the law was a solution in search of a problem,” Bonney said. “There is no evidence of a single case in Kansas, or elsewhere quite frankly, of citizenship fraud in order to register to vote.”