The U.S. Supreme Court ruled Monday that Arizona cannot require voters
to document their citizenship before allowing them to cast ballots in federal
Rather, the high court said that a 1993 federal law takes precedence. That statute says people may register to vote using a federal form that asks, under penalty of perjury, whether they are U.S. citizens.
Kansas Secretary of State Kris Kobach said he thinks the ruling will not invalidate a similar law in his state that aimed, like the measure in Arizona, to exclude people who are in the country illegally from participating in U.S. elections.
The Kansas law that went into effect Jan. 1 requires those registering to vote for the first time to provide proof of U.S. citizenship. But Kobach, the state's chief elections officer, said the Kansas law differs in some key ways from the Arizona statute.
"We very intentionally and carefully drafted the law to avoid the pitfall that the Arizona law fell into," Kobach said in an interview.
An official with the American Civil Liberties Union in Kansas City wasn't so sure.
"This certainly raises big questions about whether the Kansas law will be allowed to go forward or not," said Gary Brunk, the ACLU's executive director for Kansas and western Missouri.
The organization is reviewing the court's ruling and is weighing a possible lawsuit challenging the Kansas law.
In the 7-2 ruling, the Supreme Court said the Arizona law erred by requiring would-be voters to prove they were U.S. citizens before filling out a federal registration form.
Federal law "precludes Arizona from requiring a federal form applicant to submit information beyond that required by the form itself," Justice Antonin Scalia wrote for the court's majority.
Besides Kansas, Georgia and Alabama have similar proof-of-citizenship laws. Other states have considered adding them.
The 9th U.S. Circuit Court of Appeals had ruled against Arizona, saying that the National Voter Registration Act of 1993 does not require such documentation and trumps Arizona's Proposition 200, which voters approved in 2004.
Arizona appealed that ruling to the Supreme Court and lost its case with the Monday ruling.
"Today's decision sends a strong message that states cannot block their citizens from registering to vote by superimposing burdensome paperwork requirements on top of federal law," said Nina Perales, the vice president of litigation for the Mexican American Legal Defense and Educational Fund. Perales was lead counsel for voters who challenged Proposition 200.
But Tom Caso, a law professor at Chapman University in California, said the decision opens the door to non-citizens voting.
"The court's decision ignores the clear dictates of the Constitution in favor of bureaucratic red tape," Caso said.
Scalia said Arizona has other options to prevent non-citizens from voting.
Writing for Chief Justice John Roberts and Justices Anthony Kennedy, Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan, Scalia said Arizona does not need to register voters when it has other proof that they are not citizens.
He said the state could ask the federal Election Assistance Coalition to alter the form to require evidence of citizenship and go to court if the commission fails to do so.
The two dissenting justices, Clarence Thomas and Samuel Alito, said the Constitution stipulated that states set voter-registration requirements.
Kobach, who helped Arizona draft anti-illegal-immigration laws beginning in 2007, said he had nothing to do with the state's Proposition 200.
He said that Arizona statute mistakenly rejected the federal registration form unless it was accompanied by proof of citizenship.
"We didn't make that mistake in Kansas," Kobach said. "We were well aware of what was going on with the Arizona legislation."
He said the Kansas law specifically accepts the federal form.
"So if you send in a federal registration form, and you don't accompany it with proof of citizenship, that's perfectly fine," Kobach said. "We'll register you as a voter."
But, he said, that registration is held "in suspense" -- meaning the vote does not count -- until the proof of citizenship is provided.
Louis Goseland, a coordinator with the Wichita-based KanVote Coalition, which is working to repeal the Kansas law, said the problem with requiring a birth certificate is that there is hardly any voter fraud to target in Kansas.
He said more people are turned away from casting ballots as a result of the law than there are cases of voter fraud in the state.
"Our main problem is these are solutions in search of a problem," Goseland said. "It's really about making voting more difficult for some people."
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