There’s a deep irony about a joint lawsuit Republican state officials in Arizona and Kansas have filed against the Obama administration in order to require voters to present proof of citizenship in order to register to vote: Republicans’ own national obstructionism on voting rights is a key blockade for the state-level restrictions to go through.
The lawsuit, filed by Arizona Attorney General Tom Horne, Arizona Secretary of State Ken Bennett and Kansas Secretary of State Kris Kobach and following Supreme Court Justice Antonin Scalia’s guidance issued in the Supreme Court case this July, claims that the Obama administration is illegally blocking Arizona and Kansas’ efforts to require proof of citizenship for registering to vote. The suit argues that failing to staff the vacant Election Assistance Commission (EAC), which is charged with overseeing voter registration guidelines related to the national voter registration form, is blocking these states’ ability to change their voter registration processes.
“The lack of quorum unconstitutionally prevents Plaintiffs, in violation of the Tenth Amendment, from exercising their constitutional right, power, and privilege of establishing and enforcing voting qualifications, including voter registration requirements,” the states said in their complaint.
Earlier in the summer, Bennett and Kobach sought approval from the EAC to make changes to their respective states’ voting forms that would require proof of citizenship for people seeking to vote. But the EAC could not approve the request because of a lack of a quorum of commissioners on the four-person panel. But the fault over those vacancies may lie with Bennett and Kobach’s own party.
The EAC, created as a result of the Help America Vote Act legislation passed in 2002, hasn’t been fully staffed since 2009 and hasn’t had a quorum since 2010. As EAC commissioners have resigned, Congress has failed to replace them. The last commissioners to resign, Donetta L. Davidson and Gineen Bresso, left in 2011. The commission has been vacant ever sense.
The process for filling those vacancies is as follows: Democrats and Republicans each get a chance to nominate commissioners that the president will appoint to the bipartisan panel, which must ultimately be filled by two commissioners from each party. Democrats submitted their own nominations ever since vacancies opened up, but Republicans have blocked their confirmation in the Senate and haven’t nominated any of their own commissioners.
Republicans see the panel as a partisan tool for enforcing a Democratic voting agenda, and Democrats haven’t devoted much time to filling their own nomination spots on the panel because they’ve seen Republicans filibuster other nominees when they go before the Senate for confirmation.
A Democratic official told TPM that the first step to allowing the EAC to do its job needs to be spearheaded by Senate Minority Leader Mitch McConnell (R-KY).
“My understanding is that McConnell needs to send us some names for the [Republican] slots,” the Democratic official said.
McConnell’s office declined to comment on nominating members.
So now, Thomas Hicks and Myrna Perez, President Barack Obama’s nominees for two of the four seats on the panel, effectively remain in limbo. Hicks, who formerly served as a House Administration Committee staffer and as a policy analyst for Common Cause, was first nominated in 2010 and was renominated in June. Perez, Deputy Director of New York University’s Brennan Center for Justice, was also nominated in June. Perez and Hicks are the only current nominees for the panel.
“They’re not going anywhere,” University of California, Irvine law professor Rick Hasen told TPM. “They’re not going to get [confirmed].”
Hasen added that, given the fact that the commission hasn’t had a quorum for making election decisions for a while now, Senate Majority Leader Harry Reid (D-NV) would rather focus on confirming nominees of other federal agencies that may still be opposed by Republicans, but will carry more influence when fully staffed, like focusing on confirming the head of the Consumer Financial Protection Bureau or the National Labor Relations Board, nominations Reid cut a deal over the summer to confirm.
The logical assumption for opponents of the EAC would be to avoid any mention of it again. Ever. Except Kobach and Bennett joined Arizona Attorney General Tom Horne (R) explicitly mentioned it in its lawsuit against the Obama administration on behalf of their respective states demanding that the panel approve the stricter voting requirements. By that measure, these Kansas and Arizona Republicans are blaming the blockades put up by their own party.
