Voter Registration Victory: Kobach vs. US EAC

By @Orangeone4

Congratulations to Kansas and Arizona for securing an Order from the U.S. District Court for the District of Kansas, order the U.S. Election Assistance Commission (“EAC”) to stand down, move aside and insert the state-specific instructions for proof of citizenship to the federal mail voter registration form for their respective states and according to their state laws.

Kansas, through its Secretary of State  Kris Kobach, joined two days later by Arizona’s Secretary of State Ken Bennett, sued in August 2013 when the EAC refused to update the federal mail voter registration form, claiming an administrative issue because the Commission positions are  vacant. Might this be another Obama Administration ploy to ignore state-legislated voter ID laws passed to help ensure only citizens are voting?

The lawsuit went on to ask the Court to declare the National Voter Registration Act (“NVRA”) unconstitutional as applied by the Obama Administration and the Wilkey memorandum (an internal EAC procedure permitting the Commission to not act) unlawful.

Upon instruction by the Court, the EAC issued its decision that the federal, not state governments, decide what is required proof of citizenship and that nothing beyond signing an “oath” was necessary.  The basis of the Kansas and Arizona suit is violation of the states’ constitutional rights.

In its decision, the Court stated it has authority to “hold unlawful and set aside agency action, findings, and conclusions found to be:

(A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law;
(B) contrary to constitutional right, power, privilege, or immunity;
(C) in excess of statutory jurisdiction, authority or limitations, or short of statutory right;
(D) without observance of procedure required by law;
(E) unsupported by substantial evidence in a case subject to sections 556 and 557 of this title or otherwise reviewed on the record of an agency hearing provided by statutes; or
(F) unwarranted by the facts to the extent that the facts are subject to trial de novo by the reviewing court.


The Court, justifiably skeptical, questioned how Miller could issue a 46-page decision once ordered to do so by the Court but previously stated no authority to issue a decision based on Arizona’s and Kansas’ requests.


The Court found, in accordance with Article 1, section 2, clause 1 and the 17th Amendment:

The Constitution gives each state exclusive authority (emphasis added) to determine the qualifications of voters for state and federal elections.”

Citing the ITCA (Inter Trial Council of Arizona LLC) case, the court reiterated: “ITCA also strongly indicated that this board power (Congress’ power to regulate voter registration) is not unlimited.”  The opinion in the ITCA case emphasized that “the Elections Clause empowers Congress to regulate how federal elections are held, but not who may vote in them. (emphasis added)

The Court unanimously concluded:

“The States’ exclusive constitutional authority to set voter qualifications necessarily includes the power to enforce those qualifications.”

Pointing to the NVRA, the court concluded that the state-specific requests by Arizona and Kansas to support citizenship are in fact authorized.

“The state-specific instructions shall contain the following information for each state, arranged by state: the address where the application should be mailed and information regarding the state’s specific voter eligibility and registration requirements.”

Further, the regulations include the method for a state to notify the EAC with voter eligibility requirements, and nowhere is it required that states receive EAC approval:

“(c) Each chief state election official shall notify the Commission, in writing, within 30 days of any change to the state’s voter eligibility requirements or other information reported this section.”

In summary, the Court held that the EAC does not have the authority to prevent states’ instructions for proof of citizenship be included on the federal mail voter registration form and that the EAC unlawfully withheld and failed to perform its nondiscretionary duty to change the federal form.

You can read the entire Court decision here.

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