The action by the new executive director of the U.S. Election Assistance Commission is being roundly criticized by voting rights activists, who say the "secretive move" will create additional barriers for potential voters, and one of the agency's own commissioners, who says it contradicts policy and precedent.
The new instructions were posted on the agency's website, according to EAC's executive director Brian Newby, who sent letters dated Jan. 29 to the three states that had requested the change. Under the new rule, any resident in those states who registers to vote using the federal form must show citizenship documentation — such as a birth certificate, naturalization papers or passport. In other states, no such documentation is needed to register; voters need only sign a sworn statement.
The changes took effect immediately, Newby said, adding that any interested party could request a review from the commission, which is appointed by the president and confirmed by the Senate.
That review may very well happen. EAC Commissioner Thomas Hicks, told The Associated Press that he's weighing his options so that the commissioners can address the issue. The Democrat posted a blistering statement on the agency's website this week, and said Thursday that Newby's action constitutes a policy change that should have been taken up by the commission and approved by at least three of four commissioners. Currently, there are three sitting members and a vacancy to be filled.
"I guess it is in effect, but I don't want it to be in effect," he said. The other commissioners, both Republicans, did not immediately respond to requests for comment.
Newby took over in November and came from Kansas, whose Republican secretary of state, Kris Kobach, has been a staunch advocate for such citizenship requirements and has fought court battles over them. Kobach also had appointed Newby to be a county elections commissioner.
Newby defended his decision as a routine administrative action, insisting it was within his authority and that he didn't look at the decision to add state-specific instructions in the context of the citizenship issue.
"I don't think there is any discretion that I am given to make a determination on which instructions submitted are OK and which ones aren't," Newby said. "And that is the rub here."
Newby said the move was prompted by a Nov. 17 letter from Kobach's office requesting the addition of thecitizenship documentation requirements to the federal form, and he looked at similar pending requests from Georgia and Alabama.
Hicks acknowledged that the commission was aware Newby was reviewing the requests, but wrote earlier this week that it had "addressed this matter several times over the last decade and voted to decline requests to add conflicting language to the voter registration form."
The American Civil Liberties Union of Kansas, which has fought Kobach in the courts over voting rights, echoed Hicks.
"We think this is neither appropriate, nor legal — not to mention simply bad policy," ACLU executive director Micah Kubic said. "There is a reason EAC has held the position that it did for so many years, which is that there should be one standardized federal form."
Kubic also said that the EAC's executive director should be someone who believes in extending and guaranteeing the right to vote — not creating hindrances.
"The way this was done in secret, unilaterally, without consultation, without public review and comment, without any of the normal processes and procedures that would be used for a dramatic change in policy like this, makes it all the more shocking and brazen and wrong," Kubic said.
Kansas already had moved ahead with a dual voter-registration system, banning those who registered through the federal form from voting in state and local races. A state court recently ruled Kobach did not have the legislative authority to create such a dual system, but Kobach said Thursday that it's now a moot point.
Alabama was waiting for EAC guidance to implement a proof-of-citizenship requirement because of questions of authority, state Elections Director Ed Packard said Thursday. He noted that it's unclear how soon the new rule will be implemented, or what effect it might have.
"It's really hard to predict whether there will be any dramatic or noticeable impact in terms of voter registration," he said. "Certainly we don't see it as something that's going to increase the rate of registration ... Obviously there's gonna have to be a public relations campaign to get the word out because people are not used to having to show proof of citizenship to register to vote."
Georgia hasn't implemented proof-of-citizenship requirements, and has put no restrictions on voters who register through federal forms, said David Dove, a spokesman for Georgia Secretary of State Brian Kemp.
Associated Press writer Phillip Lucas in Birmingham, Alabama, and Kathleen Foody in Atlanta contributed to this report.
Copyright 2016 The Associated Press. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.