On Monday, Brian Newby, the executive director of the U.S. Election Assistance Commission (EAC) suddenly, unilaterally, and illegally decided to issue letters adding “proof of citizenship” requirements to federal voter registration forms used in Kansas, Alabama, and Georgia. The EAC is the federal agency charged with developing and maintaining a standardized, uniform federal voter registration form as required by the National Voter Registration Act. Proof of citizenship requirements are significant obstacles to voter registration, as they require eligible citizens to provide a birth certificate, passport, or other difficult-to-obtain documents prior to being registered to vote.
Until Monday, the EAC’s policy was that the federal voter registration form must be consistent across all U.S. states and territories and that state-specific forms were neither legal nor in alignment with the goal of easing access to the ballot by eligible citizens. Kansas Secretary of State Kris Kobach requested that the agency include proof of citizenship requirements on the federal form, but the EAC rejected that request. Kobach sued the EAC. In each of the legal challenges brought against the EAC, the commission’s policy against the proof of citizenship requirement was upheld, including as recently as the summer of 2015.
Yet, on Monday, Newby independently and unilaterally decided to attempt to reverse the agency’s established policy. He did so without providing any opportunity for public comment or discussion, without informing the members of the Commission itself ... and despite the fact that he lacks the power to alter commission policy at all. Prior to being hired as executive director of the EAC in 2015, Newby was the elections director for Johnson County – a position to which he was appointed by Kobach.
Newby’s decision to unilaterally issue letters that attempt to include “proof of citizenship” requirements on the federal voter registration form is a brazen and shocking abuse of authority. His action is arbitrary, likely violates federal administrative law, and is clearly outside his legal authority.
Worst of all, this dramatic change was implemented in total secrecy-disregarding not just federal procedures for public notice, but the common courtesy of informing the members of the commission itself.
This seemingly technical change to a piece of federal government paperwork will have dramatic consequences for Kansas voters. Proof of citizenship requirements make it harder for eligible Kansas citizens to exercise their right to vote, and the state-specific requirements that Newby is now encouraging defeat the purpose of a standardized federal form. It is shameful and disturbing that Newby has chosen to stand with his political patron Kris Kobach, rather than to stand on the side of the law and the right to vote.”
Newby’s decision comes just a few weeks after a state court struck down Kansas’s two-tiered voter registration system, ruling that Secretary of State Kobach’s office overstepped its legal authority by creating a system that prevents federal form registrants from voting in state and local elections.
The American Civil Liberties Union successfully challenged that dual system, arguing that the people of Kansas have a right to vote in state and local elections no matter what form they used to register.
The ACLU of Kansas is the statewide affiliate of the national American Civil Liberties Union. The ACLU of Kansas is dedicated to preserving and advancing the civil rights and legal freedoms guaranteed by the United States Constitution and the Bill of Rights.
Micah Kubic is executive director of ACLU Kansas. Contract him at 913-490-4101 or visit the website at www.aclukansas.org.