On February 12, 2016, the Lawyers’ Committee, with theAmerican Civil Liberties Union (ACLU), Steptoe & Johnson LLP, and other civil rights organizations and law firms, filed a lawsuit in the United States District Court for the District of Columbia, challenging a decision by Election Assistance Commission (EAC) Executive Director Brian Newby that will make it more difficult for Americans to register to vote. Newby’s decision purports to allow Alabama, Georgia, and Kansas to require documentary “proof of citizenship” for applicants using the National Mail Voter Registration Form (Federal Form). American citizens in those states who cannot provide the documents, such as birth certificates or passports, will be denied the fundamental right to vote. The Federal Form, designed to guarantee a “simple means of registering to vote,” already requires applicants to swear that they are U.S. citizens under penalty of perjury.
The complaint asserts that Newby’s action violated the Administrative Procedure Act, as it was outside his scope of authority and contrary to the EAC’s rules and policy. The complaint also argues that Newby’s decision violated the National Voter Registration Act, because it lacked supporting evidence that documentary proof of citizenship requirements are “necessary” to establish U.S. citizenship. Plaintiffs in the case include the Georgia State Conference of the NAACP, the Georgia Coalition for the People’s Agenda, national and local chapters of the League of Women Voters, and individual Kansans.
On February 17, 2016, plaintiffs filed a motion for a temporary restraining order and a preliminary injunction asking the district court to immediately block and reverse Newby’s decision. The motion argues that without a reversal, his decision will substantially burden the Plaintiffs’ ability to conduct voter registration drives and will deprive eligible voters of the right to vote in federal, primary, and general elections. On February 23, 2016, District Court Judge Richard Leon (D.D.C.) denied the Motion for a Temporary Restraining Order.
Plaintiffs filed a motion for a preliminary injunction, which was heard by Judge Leon on March 9, 2016. On June 29, 2016, the court issued its decision, denying the preliminary injunction motion. Plaintiffs appealed to the United States Court of Appeals for the District of Columbia Circuit on July 1, which heard argument on September 8, 2016, and issued a 2-1 decision on September 9, reversing the decision below, and granting the preliminary injunction. Following the issuance of the circuit court’s opinion, Judge Leon heard argument on cross-motions for summary judgment on October 13, 2016. A decision on those motions is pending.
The Lawyers’ Committee has been litigating cases on proof of citizenship requirements since 2006. The Executive Director’s action, if left standing, would be contrary to the rationale behind the decisions that we and other groups have gained before the U.S. Supreme Court and multiple federal courts. In 2013, the Supreme Court ruled that Arizona could not require documentary proof of citizenship on the Federal Form without EAC approval. Last June, the Supreme Court also turned down a petition from Arizona and Kansas to hear Kobach v. U.S. Election Assistance Commission. The Court’s refusal to hear the case let stand a Tenth Circuit Court of Appeals ruling, which upheld an EAC determination that Arizona and Kansas cannot force applicants using the Federal Form to show documentary proof of citizenship.