The secretaries of state of Kansas and Arizona
have filed a joint lawsuit demanding that the federal government permit them to require proof of citizenship from anyone seeking to register to vote.
The suit stems from a 7-2 Supreme Court decision in the case of Arizona v. Inter Tribal Council of Arizona, Inc.. The ruling affirmed that a provision of the National Voting Rights Act of 1993 requires states to "accept and use" a specific federal form for voter registration. That form requires individuals to state they are a citizen and at least 18 years old. But it does not require proof of citizenship. In 2004, Arizona voters approved a law that does require that proof before anyone can register.
The law was challenged on the grounds that federal law overrides state law because of the Supremacy Clause of the Constitution. The Supreme Court affirmed that judgment, noting that not only the Supremacy Clause but the Elections Clause trumps state law. In other words, federal elections law will always supersede state elections laws.
But a window was left slightly open. The Court also ruled that states could ask the federal Election Assistance Commission to add a proof of citizenship requirement to the form. And that if the EAC refused, they could bring suit against it.
And so Kansas Secretary of State Kris Kobach and Arizona Secretary of State Ken Bennett have done so, filing in the U.S. District Court in Topeka. But there's a hang-up. The EAC has no commissioners and there's is a bill working its way through Congress to get rid of it entirely.
Kobach, however, says the EAC’s staff can grant the states’ request.
Kansas’ proof-of-citizenship requirement for new voter registrations took effect Jan. 1.
About 15,000 registrations are in limbo because the proof-of-citizenship process hasn’t been completed.
The lawsuit ignores the fact that the federal form has always required that the person filling it out swear s/he is a citizen under penalty of perjury.