BY LINDA BENTLEY | AUGUST 28, 2013
Arizona joins Kansas in suit against EAC
To date, the EAC and Miller have refused to make modifications to the state-specific instruction of the federal form
TOPEKA, Kan. – Last week, Arizona Secretary of State Ken Bennett joined Kansas Secretary of State Kris Kobach’s lawsuit against the Elections Assistance Commission (EAC), seeking a writ of mandamus to force EAC Director Alice Miller to make modifications to the Kansas and Arizona specific instructions of the federal mail voter application form.
Both Arizona and Kansas are requesting modifications to require those utilizing the federal form to submit proof of citizenship documentation in accordance with the laws in their states.
The complaint contends the current version of the federal form only requires a voter registration applicant to make a mere oath that the applicant is a U.S. citizen, while the state laws in Kansas and Arizona require voter registration applicants utilizing the federal form to also submit concrete evidence of citizenship.
To date, the EAC and Miller have refused to make modifications to the state-specific instruction of the federal form, despite the proposed modifications becoming necessary to comply with changes in the state laws of the plaintiffs.
According to the National Voter Registration Act (NVRA), the EAC and Miller have a nondiscretionary duty to make the proposed modifications to the federal form because the proposed modifications reflect the voter qualification and registration laws of Arizona and Kansas.
The complaint also seeks to have the Help America Vote Act of 2002 (HAVA) declared unconstitutional as applied by the EAC or as applied to both Arizona and Kansas.
The complaint states, “As sovereign states, plaintiffs have the constitutional right, power, and privilege to establish voting qualifications, including voter registration requirements. This power included the power to obtain information plaintiffs deem necessary to assess the eligibility of voter registration applicants and to enforce plaintiffs’ voter qualifications."
While Arizona and Kansas have been precluded from obtaining modifications to their state-specific instruction on the federal form, they have also been required under the NVRA to accept and use the federal form.
The complaint asserts the EAC’s refusal to modify the state-specific instruction requested constitutes unconstitutional acts of Congress, and is an unconstitutional invasion of the provinces of state sovereignty in violation of the 10th Amendment.
Additionally, the complaint contends the EAC’s lack of quorum precludes it from modifying the state-specific instructions of the federal form as requested, which unconstitutionally prevents Arizona and Kansas from exercising their constitutional right, power and privilege of establishing and enforcing voting qualifications, including voter registration requirements.
Because HAVA and the NVRA, as applied by the EAC or as applied to Arizona and Kansas, preclude the plaintiffs from requiring federal form applicants to provide concrete evidence of citizenship, the lawsuit alleges HAVA and the NRVA constitute unconstitutional congressional acts establishing voter qualifications or voter registration requirements that are not supported by a power specifically conferred upon Congress by the Constitution and invade the province of state sovereignty reserved by the 10th Amendment.
Citing Arizona v. Inter Tribal Council of Ariz., Inc., the complaint states the Supreme Court of the United States recently acknowledged the inviolable power of states to establish and enforce voting requirements and stated, “[s]ince the power to establish voting requirements is of little value without the power to enforce those requirements, … it would raise serious constitutional doubts if a federal statute precluded a state from obtaining the information necessary to enforce its voter qualifications.”
On Aug. 6, 2013 Miller responded to Kobach’s request for modification by saying the EAC could not process his request to reflect the Kansas proof of citizenship requirement until the EAC has a quorum because the request raises “issues of broad policy concern to more than one state.”
Following the passage of Proposition 200 in Arizona in 2004 the Arizona Attorney General submitted Proposition 200 to the U.S. Department of Justice for preclearance under Section 5 of the Voting Rights Act. In that submission, it specifically stated that the measure would “require applicants registering to vote to provide evidence of United States citizenship with the application.”
The DOJ precleared Proposition 200 on Jan. 24, 2005.
And, on Dec. 12, 2005, then Arizona Secretary of State Jan Brewer wrote to request the EAC apply Arizona policy to the state-specific instructions for the federal form.
On March 6, 2006, Thomas Wilkey, then executive director of the EAC, responded to Brewer stating federal law set forth in the NVRA and HAVA preempted Arizona’s statutory requirement that applicants submit proof of citizenship with their federal registration form.
On March 13, 2006, Brewer wrote to the EAC to renew Arizona’s request that the EAC approve Arizona-specific instructions giving effect to Proposition 200’s proof of citizenship requirement.
Brewer received a letter from then EAC Chair Paul DeGregorio that the Tally vote failed by a vote of 2-2.
That was followed by Brewer submitting a request for reconsideration.
In May 2009 a group of individuals challenged Proposition 200’s proof of citizenship requirement which was later consolidated with another complaint filed by the Inter Tribal Council of Arizona, Inc.
On June 17, 2013, the U.S. Supreme Court held that Arizona must accept and use the federal form to register voters for elections for federal office, but nothing precluded it from renewing its request to the EAC to modify the federal form to include Arizona-specific instruction and challenging the EAC’s rejection of that request.
Two days later, Bennett wrote to Miller to renew Arizona’s request to modify the federal form.
On July 26, 2013, Arizona Attorney General Tom Horne wrote to Miller to join Bennett’s request that the EAC modify the federal form.
On Aug. 13, 2013, Miller sent a letter to Bennett informing him the EAC could not process Arizona’s request to modify the federal form due to lack of a quorum on the EAC.
The complaint asks the court to find the EAC’s findings and failure to modify the state-specific instructions of the federal form as requested by the plaintiffs “as agency action unlawfully withheld or unreasonably delayed; as agency action contrary to constitutional right, power, privilege, or immunity; and as agency action in excess of statutory jurisdiction, authority, or limitations, or short of statutory right.”
It also asks the court to issue a writ of mandamus ordering the EAC to modify the state-specific instructions as requested and because the EAC’s refusal to modify the state specific instructions of the federal form, while at the same time requiring states accept and use the federal form to register to vote, declare the NVRA unconstitutional as applied by the EAC or as applied to plaintiffs.
The lawsuit also seeks, among other things, to enjoin the EAC and any employee or officer acting on its behalf from exercising discretion to refuse, at the request of plaintiffs, to include state-specific instructions on the federal form that plaintiffs deem necessary to assess the eligibility of voter registration applicants and to enforce their voter qualifications.
