Democratic Election Assistance commissioner pushes back on state proof-of-citizenship requirements

Earlier this week, the Election Assistance Commission announced that it had granted requests from Kansas, Georgia and Alabama to require proof-of-citizenship for voter registration. This amounted to a capitulation by the EAC, which had previously won court battles against Kansas and Arizona over this very issue. As election law professor Rick Hasen explained:

After a bunch of litigation, where things stood until recently was: these states had to accept the federal form for voting in federal elections. KS took the position that it did not have to allow voting by those using the federal form in state elections.  A state court recently rejected this two-tiered voting system, but the issue was on appeal.

Hasen also pointed out on Monday that EAC’s executive director, Brian Newby, is himself from Kansas. According to MSNBC’s Zachary Roth, he is claiming that he has the authority to change state-level requirements for federal voter registration without changing the federal voter registration form itself.

This leaves many observers, myself included, confused as to why the EAC would backtrack on an issue it had already won. Granting three states exceptions from a fairly straightforward rule, without any evidence showing that such changes were necessary, is really strange.

Not only that, but the lone Democratic commissioner on the EAC, Tom Hicks, disagrees with his executive director. As he wrote in a statement earlier today, the move “contradicts policy and precedent,” and that Newby lacked the authority to make these changes on his own:

The Election Assistance Commission, via Wikimedia Commons

The Election Assistance Commission, via Wikimedia Commons

The Executive Director of the United States Election Assistance Commission (EAC) issued letters to the states of Kansas, Georgia, and Alabama granting the states’ request to amend the state instructions to the federal voter registration form, a decision that contradicts policy and precedent previously established by this Commission. The Executive Director unilaterally moved to alter the federal voter registration form to reflect those states’ proof of citizenship requirements though a proposed change to the form beyond a simple change of election office address or phone number. Any material change to the form should be at the guidance of the agency’s Commissioners following a notice and public comment period. In fact, the Commission’s vote in early spring affirmed that agency staff does not have the authority to make policy decisions and further clarifying the role of the Executive Director in its Organizational Management Policy Statement by stating that the Executive Director in consultation with the Commissioners, may only “(1) prepare policy recommendations for commissioners approval, (2) implement policies once made, and (3) take responsibility for administrative matters.” The Commission has addressed this matter several times over the last decade and voted to decline requests to add conflicting language to the federal voter registration form. As such, I believe that this decision constitutes a change of policy, which can only be made following official adoption by at least three Commissioners. Therefore, I ask that the letters be withdrawn. I will also ask that the Commission review this matter in a public forum to consider the acceptance or reject of the instructions.

So I guess we may have an answer to the question of why the EAC caved and gave Kansas Secretary of State Kris Kobach an undeserving win that has the potential to disenfranchise tens of thousands of voters in his state alone: The move should never have been made in the first place, and could very well be challenged in court soon.

Expect more to come on this.

Jon Green graduated from Kenyon College with a B.A. in Political Science and high honors in Political Cognition. He worked as a field organizer for Congressman Tom Perriello in 2010 and a Regional Field Director for President Obama's re-election campaign in 2012. Jon writes on a number of topics, but pays especially close attention to elections, religion and political cognition. Follow him on Twitter at @_Jon_Green, and on Google+. .

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4 Responses to “Democratic Election Assistance commissioner pushes back on state proof-of-citizenship requirements”

  1. TellMeImDreaming says:

    Another Republican abusing power. Are there any honest ones left at all?

  2. John says:

    As of Kansas wasn’t already a Koch Brothers disaster in enough ways already now they want to further disenfranchise more voters so they can cause a total collapse of the economy and society out there. This just shows what republican really want. They want chaos so that in that vacuum corporations step in to take take away everyone’s rights and become protected citizens/lords and ladies, above the law.

  3. BeccaM says:

    Um… found this on Newby’s blog (emphasis added):

    No election administrator has been more in favor of closing the EAC than me. Contrived through the Help America Vote Act, I think the mission of the EAC has been accomplished. But, if “fix this” is a mantra, this is an agency that exists and should be amped up, again. Currently, the four commissioner seats (two Republican, two Democratic, appointed by the President and confirmed by the Senate) are vacant. It’s a Dead Agency Walking right now. Filling the EAC Commissioner posts and adopting a new strategic intent focused on solutions, not advice, would be a potential way to address the “Fix This” objective.


    Kept the rest of the paragraph lest there be any accusation of posting those first two sentences out of context.

  4. BeccaM says:

    Wow… I spent a little time last night trying to figure out who the EAC commissioners were and why they’d do this. Glad you tracked down the information, Jon. So it wasn’t all of them and apparently one rogue executive commissioner. From Kansas. And apparently a Republican.

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