One day before Arizona’s primary election, the U.S. 10th Circuit Court of Appeals in Denver heard arguments Monday on the constitutionality of voters having to prove citizenship through a passport or birth certificate before they can register to vote.
Arizona and Kansas have both passed laws requiring voters to prove citizenship before they can register. That is stricter than federal law, which requires a voter simply to affirm U.S. citizenship in writing.
FOR THE RECORD:
Voter registration: An article in Section A on Aug. 26 about legal arguments on whether requiring proof of citizenship for voters is constitutional identified Kris Kobach as Kansas’ attorney general. He is Kansas’ secretary of state. —
On Tuesday, Arizona voters who have not proved their citizenship to the state’s satisfaction will be able to cast ballots only for U.S. Congress — not for governor or any other state offices. Kansas held such a two-tier primary earlier this month.
“The Founding Fathers didn’t want that,” said Kansas Atty. Gen. Kris Kobach, who argued the case for both states. “They are using the federal form as a lever to displace the state’s power,” he said in an interview after the hearing.
Supporters contend such laws prevent voter fraud. Opponents maintain that the real motivation is to make it more difficult for minorities and the poor to vote.
The case hinges on “a narrow but important issue,” said Dan Tokaji, an Ohio State University expert on election law and voting rights. “It’s important because if Arizona and Kansas win, we could see a lot more states trying to make it more difficult to register.”
Manipulating voter registration has an unsavory history, Tokaji said.
“If you look at the history of voting rights in this country, registration has often been used and manipulated ... to prevent certain groups of people from voting, most notoriously blacks in the South before the  Voting Rights Act,” he said.
But Richard Hasen, a professor of law and political science at UC Irvine, calls noncitizen voting “not a phantom problem,” as Democrats often describe it. “But the number of noncitizens registered and voting is small.... The question is, how large a problem is it, and is it worth taking the risk of disenfranchising voters” who can’t easily prove citizenship.
The case before the 10th Circuit comes from Wichita, where U.S. District Judge Eric Melgren ruled this year that the federal Election Assistance Commission must amend federal voting registration forms to conform with state rules.
The commission had rejected the states’ request, noting that it had no commissioners because of Congress’ political gridlock. Melgren ordered the commission to decide, then overruled its decision.
One of the three appellate judges hearing the appeal, Carlos Lucero, appeared hesitant about forcing a commissioner-less commission to act.
“Where in the record do we find sub-delegation?” he asked. Could a court clerk render judicial decisions if there were no judges on the bench, Lucero wondered.
Judge Jerome Holmes asked whether the matter was really a constitutional question. He told Kobach that no one was telling states they could not impose voter restrictions.
Lucero seemed irritated that what he sees as a wholly political issue had landed in his court. “All of a sudden the courts are asked to step into inherently political questions and make political decisions,” he said.
Kobach has asked that the matter be fast-tracked because of the November general election.
But Arizona elections officials say they have little hope that the issue will be settled before November’s midterm election. Even if the 10th Circuit renders its decision before then, its ruling almost certainly will be appealed to the U.S. Supreme Court.
Pima County Chief Deputy Recorder Chris Roads said he was concerned that confusion surrounding the citizenship requirement may further alienate the electorate as voter registration drives intensify.
The proof of citizenship aspect of voting in Arizona hasn’t been settled by the courts for about a decade, which has led to rule changes in nearly every election, Roads said.
Some voter drives persuade people to register by telling them that all they have to do is show up and cast a ballot, he said. When it turns out to be more complicated, “It just ends up alienating that voter.”
In practical terms, however, Kansas and Arizona registration limits have had little effect.
For Kansas’ Aug. 5 primary, just 180 voters had registered as “federal only” out of 1.76 million registered voters, Kobach said, and only one person in that “federal only” group actually cast a ballot.
In Arizona, fewer than 1,000 of its more than 3.2 million voters had registered for a federal ballot because they could not meet the state’s requirement, Secretary of State Ken Bennett said.
State efforts to tighten voting requirements have picked up steam since the 2010 midterm election, when Republicans boosted their clout in several statehouses. More than 20 states have adopted voter restrictions in the last few years, according to the Brennan Center for Justice, a policy and law institute at New York University.
Voting rights and access to the polls became a new front in the partisan fight between Democrats and Republicans after the fiercely disputed 2000 presidential campaign, in which an effective tie in Florida led to a decisive U.S. Supreme Court decision that put Republican George W. Bush in the White House.
Carcamo reported from Tucson, Deam from Denver and Barabak from San Francisco.