Civil rights groups asked a federal appeals court panel in Washington on Thursday to toss out proof-of-citizenship requirements in Kansas, Alabama and Georgia for people who use a federal form to register to vote, saying the change could lead to the “mass disenfranchisement” of tens of thousands of applicants in the November general election.
With voter registration deadlines bearing down in the three states — beginning in Georgia on Oct. 11 — the three-judge panel of the U.S. Court of Appeals for the D.C. Circuit did not say when it would rule. However, at least two members seemed skeptical of the states’ case, which is being challenged by the League of Women Voters, the NAACP in Georgia and other groups.
A list of 17,000 Kansans whose applications to vote are on hold could be evidence of potential “irreparable harm” by the state requirements, said U.S. Circuit Judge Judith W. Rogers, a 1996 appointee of President Bill Clinton.
The applicants are on a “suspension” list of people who began, but had not completed, the registration process in the past 90 days, with the state estimating that as many as 50,000 individuals could have their applications canceled this election cycle.
“If you wanted to find a way to violate the Administrative Procedures Act and invite lawsuits, this is a good way to do it,” said Judge Stephen F. Williams, a 1986 appointee of President Ronald Reagan, referring to a federal law that is under dispute.
Thursday’s argument was the latest legal combat involving civil rights groups, Democratic lawyers and the Obama administration, who are battling conservative lawyers and Republican-
controlled states over who will be eligible to vote in this year’s presidential contest.
Challengers in federal appeals courts have successfully argued to shelve new voting laws passed by Republican legislators in Texas and North Carolina — where courts said changes would have discriminated against African Americans and Hispanics — and won other victories in Wisconsin and Washington.
Disputes are pending elsewhere over matters such as the handling of absentee ballots, purges of inactive voters and counts of ballots cast by eligible voters in incorrect precincts, all issues that could prove decisive in close contests.
The appeal in Washington came after U.S. District Judge Richard J. Leon of the District on June 29 rejected a request to block the three states from enforcing the citizenship documentation requirement while the lawsuit challenging the laws goes forward.
Leon said the identification changes, “although an inconvenience,” do not preclude the civil rights groups from encouraging and registering people to vote.
Kansas implemented its requirement in 2013, but has said if it loses in court it will retroactively allow voters to cast ballots in federal races if their applications to vote in the state were canceled solely because they did not document citizenship.
Georgia and Alabama passed similar requirements in 2009 and 2011, respectively, but are not enforcing the rules, Leon wrote.
The groups challenging the requirements allege that the executive director of the U.S. Election Assistance Commission acted improperly Jan. 29 when he granted requests by the states to alter the federal form to incorporate the states’ ID requirements.
Elsewhere in the country, the federal forms allow applicants to check a box, sign and swear under penalty of perjury that they are citizens.
The new rules in the three states require proof of citizenship such as birth certificates, naturalization papers or passports for both its state registration form and the federal form.
However, the Supreme Court has previously said the federal form is intended to provide a “backstop” guaranteeing a simple way to register to vote in federal elections, no matter what hurdles states impose.
Before this year, the election commission found that proof-of-citizenship rules were not valid for the federal registration form. A U.S. appeals court agreed in 2014.
The January letter from the elections officials prompted the legal challenge in federal court.
Citizens who lack documents tend to be poor, rural and African American, the plaintiffs’ lawyer, Michael C. Keats, said in court.
“These are exactly the kind of procedural hurdles that Congress tried to avoid, at least for federal elections” under the National Voter Registration Act of 1993, Keats said.
In an unusual move, the Justice Department did not defend the action by the federal official who cleared the changes to federal forms in the three states in his January letter.
At Thursday’s argument, Circuit Judge A. Raymond Randolph, a 1990 appointee of George H.W. Bush, said it was not clear that the official’s action was improper, since commissioners had not overruled him.
Kansas Secretary of State Kris W. Kobach defended the ID measure, saying his state’s voters overwhelmingly supported it.
Opponents’ challenges that “claim harm to hypothetical individuals who are hypothetically unable to complete their registration,” Kobach said, are “speculative” concerns.
In striking down down an Arizona proof-of-citizenship requirement in federal elections there in 2013, the U.S. Supreme Court said Congress decides how elections are run, but that states decide who gets to vote and could seek permission from the federal commission or sue in federal court to change registration requirements, Kobach argued.