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D.C. Cir. Halts State-Specific Citizenship Questions in Voter Registration

By Casey C. Sullivan, Esq. on September 13, 2016 | Last updated on March 21, 2019

A divided D.C. Circuit panel ordered the United States Election Assistance Commission to remove additional, state-specific citizenship questions from the federal voter registration form on Friday. That form already requires U.S. citizenship as a requirement to register to vote, but the states of Kansas, Georgia, and Alabama had requested additional citizenship questions in the section of the form dedicated to state-specific instructions.

The brief order from the D.C. Circuit requires the EAC to remove state-specific instructions from the form and ignore those questions on completed forms.

Forms and Formalism

The federal voter registration form lists U.S. citizenship as prerequisite for registering to vote and requires that registrants sign "under penalty of perjury." That nation-wide citizenship requirement wasn't enough for Kansas, Georgia, and Alabama, however. They requested that their state's own citizenship rules be included in the state-specific section, where the rules for voter registration in each state are laid out. In Kansas, for example, applicants are required to provide one of 13 types of "documentary evidence" or a witness's statement to prove citizenship, according to the Courthouse News Service.

In January, the EAC's Executive Director, Brian Newby, agreed, adding those states' requirements to their section of the federal form. That decision led to a suit by the League of Women Voters, who argued that the new instructions could disenfranchise legitimate voters and sought to enjoin the question's inclusion on the form.

According to the League, requiring citizenship documentation would hurt voter registration drives because "some people do not carry proof of citizenship around with them, others do not possess documentation of citizenship at all and are unable to afford it, and some individuals that do have documentation of citizenship on their person would not feel comfortable allowing voter registration volunteers to handle it."

They claimed that Newby's decision was made outside of the EAC's notice and comment rulemaking requirements and without the full consideration of the commission's three commissioners.

D.C. Circuit Sides With the League, for Now

D.C. Circuit Judges Judith W. Rogers and Stephen F. Williams agreed on Friday, finding that the League had "demonstrated irreparable harm, a likelihood of success on the merits, that the balance of equities tips in their favor, and that an injunction is the public interest." A full opinion explaining their reasoning is to come shortly. In the meantime, the EAC has been ordered to disregard Newby's approval and remove the questions from the federal form, in order to restore the status quo while the case is being decided.

Judge A. Raymond Randolph dissented, saying that "serious constitutional doubts" could arise, though they haven't yet, should the court rule against the final EAC's approval in the end. Under Arizona v. Inter Tribal Council of Arizona, it's up to the states to establish voting requirements, though the two-judge majority notes that neither the current injunction nor a final ruling against the EAC would prevent the states from effecting their citizenship requirements.

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