The Lawyers’ Committee and several other legal organizations represent the Inter Tribal Council of Arizona, Inc., the Arizona Advocacy Network, the League of United Latin American Citizens Arizona, and State Senator Steve Gallardo as defendant-intervenors in this lawsuit to oppose the effort by the States of Arizona and Kansas to include a documentary “proof of citizenship” requirement as part of the National Mail Voter Registration Form (“Federal Form”). The Federal Form was created by the National Voter Registration Act of 1993 (“NVRA”) and, pursuant to the NVRA, was issued by the U.S. Election Assistance Commission. The Lawyers’ Committee previously represented the same parties in a successful lawsuit against Arizona regarding an earlier attempt by that State to require Federal Form registrants to comply with the State’s proof of citizenship procedure; that case, Arizona v. Inter Tribal Council of Arizona, Inc.(“ITCA“), 133 S. Ct. 2247, was ultimately decided in our clients’ favor by the Supreme Court in June 2013.
The NVRA specifies that the EAC may include in the Federal Form only information that is “necessary” to enable state election officials to assess each registration applicant’s voting eligibility and that States must “accept and use” the Federal Form as promulgated by the EAC. In its ITCA decision, the Supreme Court ruled that Arizona was precluded by the NVRA from supplementing the Federal Form with its proof of citizenship procedure because the EAC had not incorporated that procedure in the Form, and because supplementing the Form in this manner would violate the “accept and use” requirement. The Supreme Court left open the possibility, however, that Arizona might in the future ask the EAC to amend the Federal Form to include the state provision.
After ITCA, Arizona and Kansas petitioned the EAC to include in the Federal Form, as used in these two States, each of these States’ proof of citizenship procedures, and also filed the instant lawsuit against the EAC asking the courts to compel the EAC to grant their petition requests. In response, the EAC issued a 46-page decision in January 2014 in which the agency found that requiring registration applicants to provide documentary proof of citizenship is not necessary to insure that noncitizens do not attempt to register to vote. The EAC cited to the protections against noncitizens registering that are already included in the Federal Form, the lack of evidence that noncitizens are seeking to register to vote, and the several ways in which States (including Arizona and Kansas) may implement additional procedures to guard against any noncitizen registrations without imposing further requirements on registration applicants. Accordingly, the EAC declined to amend the Federal Form in the manner requested.
Following the EAC’s ruling, however, the U.S. District Court for the District of Kansas issued a decision, in March 2014, holding that the EAC did not have the authority to evaluate the States’ petitions to determine whether proof of citizenship is necessary for assessing eligibility to vote, and that the EAC was obligated to grant the petitions. The EAC and the several groups of defendant-intervenors (including intervenors represented by the Lawyers’ Committee) appealed, and also sought an immediate stay of the district court’s decision, which the Tenth Circuit Court of Appeals granted.
On November 7, 2014, the Tenth Circuit issued its decision on the merits reversing the district court. The Tenth Circuit ruled that, under the Supreme Court’s ITCA decision, the EAC was authorized to evaluate the States’ petitions under the necessity standard set forth in the NVRA, and that the EAC had properly substantiated its conclusion that, as a factual matter, documentary proof of citizenship is not necessary. The Tenth Circuit also found that that the EAC’s Executive Director had acted within her authority in issuing the January 2014 decision, notwithstanding that all of the agency’s commissioner positions were vacant at that time.
The States petitioned the Supreme Court to hear an appeal of the Tenth Circuit’s decision in spring 2015, and on June 29, 2015 the Supreme Court denied that petition, leaving the Tenth Circuit’s decision as the final word on this matter.