by Spencer S. Hsu, The Washington Post
Civil rights groups are set to ask a federal appeals court panel in Washington on Thursday to block Kansas, Alabama and Georgia from enforcing proof-of-citizenship requirements for people using a federal form to register to vote.
The League of Women Voters and its state chapters, the NAACP in Georgia and other groups said in court briefs that the U.S. Justice Department agrees with their February lawsuit. In them, they alleged Brian D. Newby, executive director of the U.S. Election Assistance Commission, improperly and unilaterally granted requests by the three states to require proof of citizenship for new voters on the federal registration form, reflecting state registration requirements.
U.S. District Judge Richard J. Leon of Washington in June rejected a request to block the three states from enforcing the change, a decision the civil rights groups appealed.
Oral arguments are set for 9:30 a.m. Thursday before judges Judith W. Rogers, Stephen F. Williams and A. Raymond Randolph of the U.S. Circuit Court of Appeals for D.C.
The hearing is the latest legal combat involving civil rights groups, Democratic lawyers and the Obama administration, who are challenging conservative lawyers and Republican-controlled states over who will be eligible to vote in November in a presidential election year.
The battles in federal appeals courts are occurring as an eight-member U.S. Supreme Court is evenly split ideologically.
Challengers in federal appellate courts have successfully argued to shelve new voting laws passed by GOP legislators in Texas and North Carolina — where courts said changes would have discriminated against African Americans and Hispanics — and won other victories in Wisconsin and Washington.
Disputes are pending elsewhere over matters such as the handling of absentee ballots, purges of inactive voters and counts of ballots cast by eligible voters in incorrect precincts, all issues that could prove decisive in close contests.
The case set to be heard Thursday follows a Leon’s June 29 ruling in which he concluded plaintiffs had failed to show they would be “irreparably harmed” by the proof-of-citizenship requirement. Kansas implemented the requirement in 2013 for its state voter registration form and a simpler federal version. Georgia and Alabama passed similar requirements in 2009 and 2011, but are not enforcing the rules.
Leon said the changes, “although an inconvenience,” do not preclude the groups that want to block the rules from encouraging people to vote.
Leon said that in Kansas, any harm is “not actually irreparable,” because the state said it will retroactively register individuals who sought to vote in federal elections but were barred because they did not document their citizenship when they first applied.
Kansas Secretary of State Kris W. Kobach, who defended the state measure in court, has filed a brief under seal in the appeal, but publicly praised Leon’s decision for ensuring that only U.S. citizens vote, which is “overwhelmingly supported by Kansas voters.”
In a friend-of-the-court filing, a lawyer for the conservative Eagle Forum Education & Legal Defense Fund sided with Kansas and said the lawsuit “concerns States’ ability to enforce their unquestioned constitutional control over voter qualifications under the National Voter Registration Act.”
“Kansas’s interests — electoral integrity, state sovereignty — easily trump the Leagues purely economic claims,” wrote fund counsel Lawrence J. Joseph of Washington, adding that the league and its chapters should not be permitted to file suit on behalf of unnamed would-be voters.
Lawyers for the plaintiffs said that before January, the federal Election Assistance Commission had found that proof-of-citizenship rules were not valid for the federal registration form. A U.S. appeals court agreed in 2014.
The civil rights groups called attention to the Justice Department’s unusual move to side with them rather than with the federal agency, noting the department conceded that Newby did not establish a legal record that a proof-of-citizenship requirement was “necessary” to enforce voting laws.
“Time is of the essence” to decide the case before Election Day, lead plaintiffs lawyer Jonathan D. Janow of the Washington law firm Kirkland & Ellis argued in a written brief that included the Brennan Center for Justice, ACLU and Lawyers’ Committee for Civil Rights Under Law. “The only question remaining is the scope” of an order blocking the changes, Janow wrote.
Williams and Randolph were appointed by presidents Ronald Reagan in 1986 and George H.W. Bush in 1990, respectively, and Rogers by president Bill Clinton in 1994.