Federal Appeals Court Blocks Proof-Of-Citizenship To Vote Gambit In 3 States

September 26, 2016 1:08 p.m.

A federal appeals court Monday blocked the move earlier this year by a federal election official to approve a proof-of-citizenship requirement on the federal voting registration forms in Kansas, Georgia and Alabama.

Brian Newby (pictured above), the executive director of the Election Assistance Commission who was formerly a local elections official in Kansas who worked under Kansas Secretary of State Kris Kobach, had approved of the form change over the objections of other members of the commission. He had become the commission’s executive director after the Supreme Court had refused to take up a case brought by Kansas and Arizona to force the EAC to change the voter registration form.

The U.S. Circuit Court of Appeals for the DC Circuit issued a preliminary injunction on Newby’s decision, reversing a district court decision that allowed the proof-of-citizenship requirement to be included on the federal voter registration form in the three states, though it appears that only Kansas was in the process of enacting it. Kobach has been vocal supporter of anti-immigration measures, as well as laws that make it harder to vote, though many of his efforts have been blocked by courts.

Two of the three appeals court judges on the panel hearing the case said that those who had challenged Newby’s decision “have a substantial (perhaps overwhelming) likelihood of success on the merits.”

The decision had been challenged by the League of Women Voters and other civil rights groups, as well as by individual voters. The appeals court said that Kansas’ proof-of-citizenship requirement “substantially limited” the ability of the Kansas League of Women Voters to successfully register voters.

“Because, as a result of the Newby Decisions, those new obstacles unquestionably make it more difficult for the Leagues to accomplish their primary mission of registering voters, they provide injury for purposes both of standing and irreparable harm,” the opinion said.

The opinion also suggested that Newby had violated regulatory law in his decision to approve the form change.

“If Congress intended to give the states the power to decide what information the Federal Form contains, then it would have had little reason to include this separate permission for states to use their own forms,” the opinion said.

The court also pushed back on Newby’s argument that blocking his decision would cause confusion, as the court said that confusion was already occurring due to the proof-of-citizenship requirement being added to the voter registration form.

“An agency should not be allowed to claim that the confusion resulting from its own improper action weighs against an injunction against that action. The
harm to the public interest as a result of confusion from reinstatement of the prior Federal Form is, in any event, far outweighed by the countervailing harms that would flow from the court’s refusal to enjoin the Newby Decisions,” the decision said.

Judge Judith Rogers and Judge Stephen Williams — a Clinton appointee and a Reagan appointee, respectively — made up the majority opinion. Judge A. Raymond Randolph, a George H.W. Bush appointee, dissented from the decision.

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