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April 24, 2014

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Judge to decide proof-of-citizenship voting rule

Updated Tuesday, Feb. 11, 2014 | 2:32 p.m.

WICHITA, Kan. (AP) — A federal judge listened to arguments Tuesday in a lawsuit seeking to force federal elections officials to include a proof-of-citizenship requirement on federal voter registration forms for Kansas and Arizona residents.

U.S. District Judge Eric Melgren said at the end of the hearing in Wichita that he would issue a written ruling. He didn't say when.

Kansas and Arizona are suing to force the U.S. Election Assistance Commission to include the states' proof-of-citizenship requirement on the federal registration form for their residents. The states require voters to provide a birth certificate, passport or other proof of U.S. citizenship when registering to vote. Those who register using the federal form sign only a statement under oath that they are U.S. citizens.

In December, Melgren sent the issue back to the EAC for final agency action, but said he had "serious reservations" about the federal government's power to rule on the voter registration issue. His tough questioning of attorneys for the Justice Department and voting rights groups during Tuesday's hearing frequently returned to that state rights issue.

"My decision comes down constitutionally to who gets to decide what is necessary," Melgren said.

The dispute stems from a U.S. Supreme Court ruling in June that barred states — Arizona in that particular case — from refusing to accept the national voter registration form.

Melgren told attorneys during Tuesday's hearing that he didn't see a clear statement in that Supreme Court decision signaling that the agency has the authority to be the decision-maker for the states.

Kansas Secretary of State Kris Kobach has championed his state's proof-of-citizenship law as a way to prevent noncitizens from voting, particularly those in the U.S. illegally. Critics say incidents of noncitizens registering to vote are extremely rare, and that such Republican-backed proof-of-citizenship laws hurt voter registration efforts and disenfranchise voters from certain groups that tend to vote Democrat, including minorities, college students and the elderly.

Kobach, a Republican, argues that states have the sovereign right to maintain their voter rolls and that the federal voter registration form should therefore be tailored to the requirements of each state.

The Justice Department, which is representing the EAC in the lawsuit, countered that when Congress enacted the National Voter Registration Act, it considered and ultimately rejected such a documentation requirement. Additional documentation is unnecessary because safeguards already exist that allow election officials to determine applicants' citizenship status, such as national databases of birth certificates, said DOJ civil rights attorney Bradley Heard.

"The important thing is that there are means of enforcing that," Heard said.

But Kobach told the court that alternative measures suggested by the agency don't work and are costly. The EAC is "attempting to substitute its judgment for the Legislature of Kansas and the people of Arizona," he said.

He contended it took his office weeks to find 20 voters on Kansas rolls who weren't citizens and therefore weren't eligible to vote. That number could be significant in a close election, he argued, adding that the state has had 24 races in which the winner was decided by 50 votes or fewer.

John Freedman, an attorney for Project Vote, a group that intervened in the lawsuit to oppose the states' request, turned Kobach's argument on its head. He said tens of thousands of people in Arizona and Kansas can't vote because of burdensome documentation rules. Several voting rights groups have already stopped doing registration drives in Arizona because of it.

Valle del Sol, one of the groups involved in the Supreme Court decision, told Melgren that no one is challenging Kansas' authority to put proof-of-citizenship requirements on their state registration forms. The group's attorney, Nina Perales, noted that the federal form clearly states the applicant is claiming citizenship under penalty of perjury and that a person who is not a U.S. citizen who falsely tries to register can be deported.

The only issue before the court is the federal form, and there is not "a shred of evidence" that anyone has used the federal form illegally to register to vote, Perales said.

The Election Assistance Commission denied requests last month from Kansas, Arizona and Georgia to change the federal form. The commission found heightened proof-of-citizenship requirements likely would hinder eligible citizens from voting in federal elections. Georgia is not part of the lawsuit filed by Kansas and Arizona, but federal officials have said a ruling in the case could have widespread implications for similar requests from other states.

The commission said Kansas has experienced problems with its stricter voter registration requirements. The voter registrations of 14,843 Kansans remained on hold Monday because the applicants hadn't adequately proven their citizenship to election officials.