- The Washington Times - Monday, September 12, 2016

Three states that have enacted proof of citizenship requirements for voter registration may have to wait until after the presidential election to find out whether the rules will be upheld in court, as a federal judge on Monday delayed a definitive ruling in a legal challenge.

In the meantime, Kansas, Alabama and Georgia are blocked temporarily from requiring residents to provide proof of U.S. citizenship to register to vote via federal mail-in forms.

The executive director of the U.S. Election Assistance Commission in January approved requests by the three states to require voting registrants to provide proof of citizenship, such as a birth certificate or a passport.

The League of Women Voters filed suit over the requirements, arguing that they would disenfranchise voters and that Executive Director Brian Newby overstepped his authority in approving the requests.

U.S. District Judge Richard Leon in June denied a preliminary injunction that would have blocked the states from enforcing the requirements while the case is argued.

But a three-judge panel of the U.S. Court of Appeals for the D.C. Circuit overturned the lower court’s ruling Friday in a 2-1 decision. The court ordered the Election Assistance Commission to promptly remove “from the state-specific instructions those requirements directing voter registration applicants to submit proof of their U.S. citizenship.”

Forms submitted since Mr. Newby approved the requirements on Jan. 29 “should be treated as if they did not contain the now-stricken state-specific instructions,” the court panel said.

The judges found that the plaintiffs had demonstrated they faced “irreparable harm” as a result of the requirements and “a likelihood of success on the merits,” but they did not issue a full opinion in the case.

A full opinion with a further explanation of the judges’ reasoning is forthcoming. Without it, Judge Leon said, he was in a bind in ruling on a separate motion for summary judgment in the case.

The judge heard from both sides in U.S. District Court on Monday before opting to hold off on ruling on the matter. He said he could not “envision a scenario in which this is worked out” before the presidential election.

“I have no idea when they will issue the opinion,” Judge Leon said, noting that it would be important in crafting his decision to understand the appellate court’s reasoning. “It could be a week, not likely, could be a month, could be after the election.”

A lawyer representing the League of Women Voters and a Justice Department lawyer representing Mr. Newby agreed that it would be most prudent to wait for the appeals court’s full opinion before moving forward.

But Kansas Secretary of State Kris Kobach argued that Judge Leon could move forward with a summary judgment and urged him to do so to provide certainty to state voters. Mr. Kobach said his office has issued several notices to voters to keep them apprised of developments after prior rulings and that many remain unclear about registration rules and their status.

Of the three states, Kansas is the only one that has been enforcing the citizenship requirement when processing voter registrations. Mr. Kobach noted that secretaries of state from Georgia and Alabama informed him that they intended to move forward with implementing the regulations after the Nov. 8 elections.

Residents registering to vote in other states are required only to swear that they are citizens, not show documentation.

Judge Leon said he would “give a little more thought” to the issue but planned to wait for the appellate court’s full opinion on the preliminary injunction and then schedule a status hearing on the summary judgment request.

“Thank you for your remarks and stay tuned,” he said at the close of Monday’s hearing.

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