- The Washington Times - Saturday, January 18, 2014

States are vowing to go to the courts for permission to ask newly registered voters to show proof of citizenship after a federal commission ruled late Friday that it’s up to the national government, not states, to decide what to include on registration forms.

Under the motor-voter law, federal officials distribute voter-registration forms in all of the states. Arizona, Kansas and Georgia all asked that those forms request proof of citizenship, but the federal Election Assistance Commission rejected that in a 46-page ruling released late Friday, just ahead of a court-imposed deadline.

The EAC said states can check driver’s license databases or ask federal immigration authorities for information, but they cannot tell the federal government what to include on federal forms.

“The EAC finds that granting the states’ requests would likely hinder eligible citizens from registering to vote in federal elections, undermining a core purpose of the NVRA,” the commission said in its ruling, referring to the National Voter Registration Act, or motor-voter law.

But Kris Kobach, Kansas’ secretary of state, said the states will go back to the courts and said there’s already a motion in front of U.S. District Judge Eric F. Melgren in Kansas to hear the case. He’s the same judge who set the deadline for the EAC’s ruling on Friday.

Indeed, the legal back-and-forth was in part spurred by a Supreme Court ruling last year, when the justices said Arizona couldn’t refuse to accept the federal registration forms.

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But Justice Antonin Scalia also specifically said states could ask the EAC to include the request on forms distributed in that state, and said if the EAC refused, the states could come back to the courts.

Friday’s decision is the latest skirmish in the push for voter identification and proof of citizenship as some states seek to crack down on what they fear is fraudulent registration and, in some cases, fraudulent voting.

Arizona, Georgia and Kansas all have similar state requirements that those trying to register prove at some point in the process that they are in the country legally, and are citizens.

The commission also said that because Congress specifically considered then rejected requiring proof of citizenship when it debated the motor-voter law, the states can’t now go and impose that requirement.

But Mr. Kobach said the commission doesn’t have the power to second-guess the states, and it doesn’t matter what Congress thought of proof-of-citizenship requests during its debate.

“Congress does not have the authority to prevent a state from requiring proof of citizenship, according to Article I of the Constitution. And Congress cannot create an agency to exercise a power that Congress itself is constitutionally prevented from exercising,” Mr. Kobach told The Washington Times.

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He also said Justice Scalia’s opinion telling the states to take their request to the EAC suggested that the commission would be obligated to accept the states’ request.

“There is simply no way to square the EAC’s decision with the text of the Supreme Court’s 2013 holding,” he said.

Critics argue that requirement is too burdensome, particularly on naturalized citizens, and would keep some eligible voters from casting ballots. The EAC agreed with that claim.

But Mr. Kobach said the danger lies in potential fraud.

“Every time an alien votes in an election, that vote effectively disenfranchises a United States citizen. But this administration evidently doesn’t see that as a problem worth addressing,” he said.

Motor-voter was enacted in 1993 in order to try to boost voters’ interest in elections. The EAC was set up in the wake of the 2000 elections, when then-candidates George W. Bush and Al Gore battled over Florida’s electoral votes.

But the four-member EAC board is empty at the moment, with no commissioners confirmed. Last week’s ruling was instead issued by the acting executive director, who was responding to a judge’s order.

• Stephen Dinan can be reached at sdinan@washingtontimes.com.

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