Appeals court questions proof-of-citizenship rules

DENVER - A federal appeals panel in Denver on Monday suggested a partisan stalemate in Congress may mean Republicans in Kansas and Arizona will be unable to force federal election officials to impose proof-of-citizenship requirements on voter registration forms.

The three-judge panel of the 10th U.S. Circuit Court of Appeals noted that Congress has not approved a single commissioner to sit on the Elections Assistance Commission, which the two states sued after it refused to add state citizenship requirements to the federal form used to register voters in those states. The commission only made its refusal after a trial court judge ordered it to make a decision, and the appellate judges were skeptical the agency had the power to do so absent commissioners.

"A political decision has been made by the political branches that they don't wish to appoint commissioners to the Elections Assistance Commission," Judge Carlos Lucero told Kansas Secretary of State Kris Kobach, who argued the case for both states. "All of a sudden the courts are asked to step into inherently political questions and make political decisions."

A lower court judge had ruled the federal government was wrong to refuse to amend the forms. The case has been carefully watched, with House Minority Leader Nancy Pelosi and other Democratic lawmakers joining the federal government's appeal to overturn the trial court's decision.

Both states argue the requirements prevent voter fraud by thwarting voting by noncitizens. Critics of such laws view them as suppressing voter turnout. But both sides agree the potential impacts of the case could extend to other states.

Kobach told the panel that preserving the status quo would create two tiers of voters in each state. In Kansas, for example, 180 people were registered through federal forms that do not require proof of citizenship, and were not permitted to vote for state offices in a primary earlier this month because they did not comply with state standards for voting. Arizona, which has its primary Tuesday, has a similar situation.

"According to our Constitution, there cannot be one voter roll for state elections and another one for federal elections," Kobach said.

Bonnie Robin-Vergeer, who argued the case for the federal commission, contended the agency's staff had the power to make the decision and that it was the appropriate one. Noting that Congress wants to make it easier to vote and that only citizens are permitted to cast a ballot under either system, she said: "The federal form provides a backstop, no matter what procedural hurdles a state's form may present, that there is a simple way of registering to vote."

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