By Erik Eckholm
A federal appeals court on Friday rejected the demands by Arizona and Kansas that federal forms for voter registration used in their states require documentary proof of citizenship.
The decision, by the United States Court of Appeals for the 10th Circuit, in Denver, is the latest step in years of legal conflict between the states and the federal Election Assistance Commission over who has ultimate power over voting procedures.
Most experts say there is no evidence that significant numbers of noncitizens have registered, an act that could lead to their arrest and deportation. But the issue has become embroiled in the emotional politics of immigration.
“The case could well be headed to the Supreme Court as a major dispute over federal versus state power in voting,” said Richard L. Hasen, a law professor at the University of California, Irvine, and the editor of Election Law Blog.Over the objections of civic groups including the League of Women Voters and Hispanic organizations, the two states require proof of citizenship for those registering using state forms. Some voters register instead using the federal form, which was designed to simplify the process and requires only that applicants swear, on penalty of perjury, that they are citizens.
The states sued the federal Election Assistance Commission when it refused to alter the federal forms, and in this year’s elections, they allowed some people who had used the federal form to vote only for federal offices, in effect creating dual voter rules. In Kansas, thousands of applications were placed in limbo.
A three-judge panel of the appeals court ruled unanimously on Friday that while the Constitution allows the states to set voter requirements for state office, it does not give them the power to force the federal agency to alter its forms. Nor had Arizona and Kansas provided a compelling reason, the judges said, because “they have not provided substantial evidence of noncitizens registering to vote using the federal form.”