EAC Director Brian Newby Tries to Sidestep Long-Settled Voter Protections

Voters wait in line to cast their ballots.

Judge Richard J. Leon heard oral arguments today in a challenge to recent overnight changes to voter registration requirements that could really harm voters in Alabama, Georgia and Kansas.

Election Assistance Commission (EAC) Executive Director Brian Newby recently tried to unilaterally change voting requirements in these three states, so that voters have to show proof of citizenship to register to vote in federal elections.

Newby’s actions are a blatant maneuver to sidestep a decade’s worth of legal battles, and Judge Leon has the opportunity to stop him from keeping thousands of Americans from accessing the ballot. 

Proof of Citizenship Laws: A Backgrounder

Proof of citizenship laws, like voter ID laws and restrictions on early voting, are another way lawmakers across the country are attempting to make it more difficult to vote. Voters can register today in federal elections through a uniform document called the federal registration form. Under the National Voter Registration Act, (NVRA), the federal government established the federal form to make it easy and systemized to register to vote in federal elections.

The proof of citizenship requirements, sought only by a few aberrant states and not by national consensus, add unnecessary obstacles for voters and go against the purpose of the federal registration form. Requiring voters in these three states at the last minute, to show proof of citizenship to vote particularly harms elderly, low-income, student and people of color, who are less likely to have easy access to valid proof of citizenship documents. This voting hurdle is also entirely unnecessary since existing law already requires registrants to attest to their citizenship under penalty of perjury, including a fine and up to five years imprisonment.

A handful of states have been fighting to impose their proof of citizenship requirements on the federal registration process, collectively, for over ten years.  The EAC repeatedly denied their requests to incorporate the burdensome requirements into the federal form.  And the states repeatedly lost their bids in the courts to sanction their enforcement of these provisions.

The battle over documentary proof of citizenship requirements began in Arizona.  In 2004, Arizona passed Proposition 200, which required eligible voters to provide documentary proof of citizenship in order to register to vote. In 2006, EAC Executive Director Thomas R. Wilkey denied Arizona’s request to apply this requirement for Arizona to the federal form. Nonetheless, Arizona sought to reject federal registration forms that were not accompanied by proof of citizenship. 

The issue went to trial and the 9th U.S. Circuit Court of Appeals  twice invalidated Arizona’s proof of citizenship requirement, finding that it conflicted with the NVRA.  In 2013, the case finally went to the U.S. Supreme Court.  The Supreme Court held that the EAC, not Arizona, has the power to decide what is necessary to determine eligibility requirements for the federal form and Arizona must accept the federal form. 

In the meantime, several other states, including Georgia, Alabama and Kansas passed similar documentary proof of citizenship laws.  Undeterred, Arizona, Georgia and Kansas submitted additional requests to the EAC to issue state-specific instructions for the federal form that incorporated their proof of citizenship requirements. Indeed, Kansas Secretary of State Kris Kobach renewed his request the day after the Supreme Court’s ruling. The EAC denied these requests in a 46-page, well-reasoned decision, citing the Supreme Court’s 2013 ruling on Arizona’s proof of citizenship law.

Unsatisfied, Kansas and Arizona sued the EAC to try to force the agency to adopt its proof of citizenship requirements. In November 2014, the 10th U.S. Circuit Court of Appeals found that the EAC acted properly and entirely within its power by denying the requests. The Supreme Court declined Kansas and Arizona’s request to review that decision. 

Newby’s shady, underhanded move

Despite consistently losing this battle, advocates for proof of citizenship requirements continue to press on. Newby, a former county election official in Kansas and ally of Kobach, took the opportunity as the new EAC executive director to get around a decade of public debate, Supreme Court rulings and EAC decision-making. He single-handedly – without public notice and comment or review by the EAC commissioners – made it more difficult for voters to register.

As MSNBC reported:

“The exact impact of Newby’s decision isn’t yet clear, but for now it gives a major boost to [Kansas Secretary of State] Kris Kobach and other Republican secretaries of state, who want to add proof-of-citizenship language to their states’ instructions. If it stands, it could allow those states to require proof of citizenship for anyone wanting to register to vote in any election. It could also make it easier for Kobach to throw out around 30,000 voter registration forms already submitted by people who didn’t provide the necessary documents, as he has been seeking to do.”   

That’s why civil rights groups are back in court once again, on what should be a well-settled issue. The League of Women Voters, Georgia NAACP and Project Vote filed suit against Newby for failing to follow his own agency’s procedures and violating the very statute he is entrusted to enforce. Despite the Department of Justice’s concession that Newby’s action violated federal law, Judge Leon temporarily allowed the change to continue to be in effect through all three states’ presidential primaries. 

As the case continues, Judge Leon has a chance to do the right thing and finally put to rest this decades-long battle over proof of citizenship laws, in time for the 2016 General Election.


Danielle is CLC's Senior Director, Voting Rights.