Brief Filed Supporting Attempt to Require Proof of Citizenship for Voter Registration
Fish v. Kobach (Read brief here)
July 27, 2016
On July 8, 2016, our firm filed an amicus brief in the U.S. Court of Appeals for the Tenth Circuit in support of State of Kansas's attempts to prevent illegal
aliens from voting. Our brief was the only brief filed supporting efforts by Kansas Secretary of State Kris Kobach to ensure honest elections in
his state.
The National Voter Registration Act of 1993, also known as the Motor Voter Law, requires states to make it possible to register to vote when a person obtains
a driver's license at the state DMV. The NVRA mandates that, when accepting applications for voter registration, the state "may require only the minimum
amount of information necessary to enable State election officials to assess the eligibility of the candidate...."
Pursuant to that provision, Kansas law requires a person to provide one of 13 documents that shows he is a U.S. citizen, such as birth certificates,
passports, etc.
Of course, since requiring proof of citizenship makes it far more difficult for illegal aliens to vote and elect Hillary Clinton, the ACLU is up in arms. The
ACLU brought suit, claiming that the only citizenship requirement that Kansas can have is requiring an applicant to check a box that he is a U.S. citizen and
to sign his name under penalty of perjury.
Believe it or not, a federal district court agreed, ruling that Kansas must simply accept a person's naked assertion that he is a citizen, rather than
actually assess his eligibility to vote as the statute permits. As we pointed out in our brief, the federal law says that a state may require a sworn
statement and additionally the minimum information necessary to verify eligibility. The district court, however, treated that sworn statement as if that
were the minimum necessary - essentially rendering the second part of the statute meaningless.
The district judge noted that the state could prosecute a person for illegally attempting to vote. But as our brief pointed out, it is not a crime in
Kansas to illegally register to vote, only to attempt to vote or illegally vote without being qualified. Plus, other federal laws prohibit a state from
removing a person from the voter registry. This means that the only recourse Kansas might have is prosecuting an illegal voter after the election is over and after
he has illegally voted.
The district court argued that the purpose of the NVRA is to increase the number of voters - yes, we pointed out, but eligible voters, not ineligible
ones. The district court attempted to minimize the problem of noncitizens voting, claiming that only a few such persons actually voted successfully in the
past, ignoring the reality that many elections come down to just a few votes.
Finally, the district court mangled the constitutional text, treating the Elections Clause (which permits Congress to regulate congressional, not presidential,
federal elections) as if it gives Congress the power to decide who can and cannot vote in all federal elections. Not so, we argued. First, the
Qualifications Clause explicitly gives states the power to decide voter qualifications. Second, Article II, Section 2 reserves to the states the power to
determine the manner of elections of the President and Vice President.
Our brief was filed on behalf of English First Foundation, English First, U.S. Justice Foundation, Public Advocate of the United States, Gun Owners
Foundation, Gun Owners of America, Conservative Legal Defense and Education Fund, U.S. Border Control Foundation, and Policy Analysis Center.
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