Federal Appeals Court Blocks Agency’s Decision to Permit Implementation of Discriminatory Proof of Citizenship Laws, Finding it “Difficult to Imagine a More Clear Violation” of Administrative Law


SEPTEMBER 26, 2016

Washington, D.C. – Today, the U.S. Court of Appeals for the District Columbia issued an opinion detailing the reasoning behind its decision to block the U.S. Election Assistance Commission (EAC) from allowing three states to implement discriminatory proof of citizenship laws. In January, EAC Executive Director Brian Newby unilaterally approved requests from Alabama, Georgia, and Kansas to require applicants in those states to submit documentary proof of citizenship, such as a copy of a passport or birth certificate, in order to register to vote with the federal voter registration form. Mr. Newby lacked the authority to approve the requests and failed to establish that documentary proof of citizenship was necessary to assess applicants’ eligibility.  Such requirements have been shown to be both discriminatory, because they disproportionately burden Americans of color, and unnecessary, because non-citizen registration is extraordinarily rare. Today, the Court concluded that the plaintiffs “have a substantial (perhaps overwhelming) likelihood of success on the merits” of the case and found it “difficult to imagine a more clear violation” of administrative law.

“We are pleased with the Court’s ruling in this matter,” said Kristen Clarke, president and executive director of the Lawyers’ Committee. “The Court agreed with our view that proof of citizenship requirements unquestionably make it more difficult for voter registration groups to register voters. The Court also found that if it did not take action, there was a substantial risk that Kansas would have disenfranchised eligible voters this election cycle. Proof of citizenship requirements, like photo ID laws, are yet another tactic aimed at making it more difficult for voters to participate in our democracy. Today’s ruling casts a dark shadow over these restrictive barriers.”

“Given the Circuit’s Court findings, particularly its determination that we demonstrated a ‘substantial (perhaps overwhelming) likelihood of success,’ we are confident that we will ultimately prevail,” stated Jon Greenbaum, chief counsel and senior deputy director, who is leading the Lawyers’ Committee litigating team in this case.

In its opinion, the Court held that “there is precious little record evidence” of fraudulent registration by non-citizens, noting that Kansas’ own evidence of this supposed epidemic revealed only one instance of a non-citizen attempting to register to vote over a 12-year span. The three states at issue are now legally prohibited from requiring Federal Form applicants to submit documentary proof of citizenship for this election cycle. In the coming weeks, plaintiffs will seek to obtain a summary judgment order that permanently blocks these requirements from going into effect.

The Lawyers’ Committee has been litigating cases on proof of citizenship requirements since 2006. The Executive Director’s action, if left standing, would have been 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.