03/24/2014 07:03 pm ET Updated May 24, 2014

What About the Voters? Requiring Proof of Citizenship to Register to Vote in Federal Elections

Last week, in Kobach v. Election Assistance Commission, a United States federal district court held that the Election Assistance Commission (EAC) could not prevent Kansas and Arizona from requesting documentary evidence of citizenship as a prerequisite to registering to vote in federal elections. Last year, the U.S. Supreme Court, in Arizona v. Inter Tribal Council, held that the National Voter Registration Act (NVRA) preempted the Arizona law because the NVRA requires that states "accept and use" a uniform federal form that allows individuals who attest to U.S. citizenship to register to vote in federal elections without having to provide proof of their citizenship status. Many commentators were pleased with the Inter Tribal decision, viewing it as a win for federal power. However, I was wary of the opinion because the Court maintained that, despite the existence of broad congressional authority over federal elections, Arizona must be allowed to alter the federal form if the state proves that it cannot properly exercise its constitutional authority to regulate voter qualifications by using the form alone.

In Kobach, the district court addressed this very issue, holding that Arizona and Kansas had established that they could not properly exercise their authority over voter qualifications by using the federal form alone. Like Arizona, Kansas prevents individuals who do not produce evidence of citizenship from registering to vote in federal elections. The district court found that the very existence of these proof of citizenship laws -- one of which the Supreme Court determined was preempted last year -- were sufficient in and of themselves to establish that the states' authority over voter qualifications was frustrated by the EAC's refusal to allow them to require documentary proof of citizenship.

As noted by Rick Hasen, the Kobach decision, like Inter Tribal before it, will likely prompt more states to pass restrictive requirements as a prerequisite to voting in federal elections. This outcome is unfortunate, particularly in light of the shortcomings of the Kobach opinion. Notably, commentary from election law professor Derek Muller, the New York Times editorial board and others criticize the Kobach opinion because, among its many flaws, the analysis did not rely on any actual proof that the states' constitutional authority over voter qualifications was being impeded by the EAC; instead, the district court assumed the conclusion by referencing the contrary state laws. In the Inter Tribal case, the Supreme Court placed the burden of proof on the state to establish that the EAC's decision undermined state authority over voter qualifications. According to the Court, a state must establish that "a mere oath will not suffice to effectuate its citizenship requirement and that the EAC is therefore under a nondiscretionary duty to include [the state's] concrete-evidence requirement" on the federal form. Relying on the presence of the state law alone to meet this burden, as the district court did in Kobach, effectively means that the EAC must always approve a state's request to add a proof of citizenship requirement to the federal form, rendering this language from Inter Tribal meaningless. Indeed, if there was any actual evidence illustrating that a "mere oath" was not sufficient to vindicate the interests of Kansas and Arizona in preventing noncitizen voting, then the district court failed to mention any such evidence in its opinion.

Also missing from the district court opinion is any discussion of the group most affected by the proof of citizenship requirement for voter registration: the voters themselves. Both the Supreme Court and the district court framed the issues in Inter Tribal and Kobach, respectively, as concerning the allocation of power over elections between the states and the federal government. This is true in at least one respect -- the Constitution's division of power over elections tries to prevent any one government becoming too powerful. But what both courts ignored is that the framers of the Constitution also instituted this division of power to protect the interests of voters. As the Supreme Court famously observed over two decades ago, the "federalist structure of joint sovereigns... increases opportunity for citizen involvement in democratic processes."

Nonetheless, both Inter Tribal and Kobach overlook statutory and constitutional provisions that directly or indirectly protect the interests of the voters and therefore must be considered in determining the division of authority between the states and the federal government over federal elections. As I have noted previously, proof of citizenship requirements for voter registration could have a disparate impact on the voting rights of certain minority groups, implicating the prohibitions on racial discrimination in voting encompassed by the Voting Rights Act of 1965 and the Fourteenth and Fifteenth Amendments. Similarly, as I argue in a recent article, Congress has used its authority under Article I, Section 5 of the Constitution "to judge the elections, returns, and qualifications of its own members" to overturn elections for the House of Representatives where states have impermissibly disenfranchised segments of their populations. In some instances, Congress has exercised this authority without showing that the contested state law was adopted for a discriminatory purpose, arguably bringing proof of citizenship requirements, which are ostensibly facially neutral, within its reach.

At the very least, the existence of statutory and constitutional provisions that bear on the rights of voters should factor into the judicial analysis of whether states can adopt measures that not only create a tension with federal law, but potentially run afoul of the interests that voters have in participating in our system of elections. Instead, the Kobach court treats the very existence of the states' proof of citizenship laws as sufficient to vindicate their interest in regulating elections, ignoring the very beneficiaries for whom the system exists and who are likely to be unduly burdened by these regulation: the voters.