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Challenging Kansas' Dual System of Voter Registration

JURIST Guest Columnist Julie Ebenstein of The Voting Rights Project of the American Civil Liberties Union discusses the ACLU's upcoming challenge to Kansas' bifurcated voter registration system...

According to the state of Kansas, some voters are qualified to vote for US President, but not for Governor or Kansas Secretary of State. In June 2013, the US Supreme Court ruled in Arizona v. Inter- Tribal Council of Arizona that the National Voter Registration Act of 1993 (PDF)—NVRA, also known as the Motor Voter Law—preempts an Arizona state law requiring voter registration applicants to submit documentary proof of their US citizenship along with their federal voter registration. Instead of simply accepting the federal form as sufficient for registration, the Kansas Secretary of State bifurcated Kansas' voter registration system, separating voters into two unequal classes—those who can vote in federal and state elections and those who can vote only in federal elections. The two-tiered voter registration system is neither true to the purpose of the NVRA nor true to the holding in Inter-Tribal Council.

The National Voter Registration Act

One of Congress's primary objectives in enacting the NVRA was to eliminate discriminatory and unfair registration laws. The NVRA also seeks to streamline the registration process and increase the number of eligible citizens who register to vote, while protecting the integrity of the electoral process.

The NVRA requires that states "accept and use" the standardized federal form for voter registration. The form is a simple postcard that requires voters to verify their eligibility by signing, under penalty of perjury, an attestation of their US citizenship. As the court recognized in Inter-Tribal Council, "the [f]ederal [f]orm provides a backstop: No matter what procedural hurdles a [s]tate's own form imposes, the [f]ederal [f]orm guarantees that a simple means of registering to vote in federal elections will be available."

The federal form, with its requirement of proving citizenship through a sworn attestation, is used in all states that require registration and was upheld by the US Supreme Court in Inter-Tribal Council as the congressional determination of what is sufficient for voter registration. Only Kansas and Arizona have decided that voter registration applicants need to supply additional documentation of citizenship in addition to the sworn attestation. All other states allow voters to apply to register by sworn attestation to their eligibility. In fact, these two states require citizenship documentation from only some applicants$#151;some of those who seek to register to vote after January 1, 2013—and not from others, including all voters registered as of January 1, 2013.

Inter-Tribal Council

In Inter-Tribal Council, the court reviewed "whether Arizona's evidence-of-citizenship requirement, as applied to [f]ederal [f]orm applicants, is preempted by the [NVRA]'s mandate that [s]tates 'accept and use' the [f]ederal [f]orm." In 2004, Arizona passed Proposition 200 [PDF], which required election officials to "reject any application for registration that is not accompanied by satisfactory evidence of United States citizenship." The NVRA requires that states "accept and use" the standard federal form sent by mail. The court asked whether the NVRA requirement that states "accept and use" the federal form preempts Arizona's state law that officials must "reject" the application of a prospective voter who submits a federal f]orm without documentary evidence of citizenship. The court held that it does.

The court interpreted "accept and use" to mean accept "as sufficient for the requirement it is meant to satisfy" as opposed to "willing receipt" in addition to additional requirements.The Elections Clause of the US Constitution provides that "[t]he Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of [choosing] Senators." The court found that when Congress legislates with respect to "Times, Places and Manner," it "necessarily displaces some element of a pre-existing legal regime," and so the usual assumption that congress is reluctant to preempt does not hold. Here, congress has forbidden states from demanding that an applicant submit additional information beyond that required by the federal form.

Belenky v. Kobach

Following the court's decision in Inter-Tribal Council, instead of Kansas accepting the federal form as a completed registration, the Kansas Secretary of State unilaterally decided to create a bifurcated system for registration. Because Kansas must "accept and use" the federal form, the secretary created a dual registration system that only accepts and uses the federal form to register voters for federal—not state or local—elections. In order to vote in state or local elections, a voter has to go beyond the requirements of the federal form. Kansas is now running two parallel systems for registration. Those who registered to vote before January 1, 2013, and those who applied for registration this year and included documentary proof of citizenship with their application, can vote in local, state and federal elections. Those who use the federal form and complete the process approved by the US Supreme Court can only vote in federal elections. This second group of voters also loses voting-related rights, including the right to sign petitions. Finally, those who apply to vote using the state registration form and do not present documentation of citizenship cannot vote at all.

In 1997, the US Supreme Court blocked a dual registration system in Young v. Fordice. Beginning in 1890, Mississippi had a dual registration requirement for state and municipal elections until the system was struck down as racially discriminatory in 1987 in Operation PUSH v. Allain. Just prior to Mississippi's 1994 implementation of the NVRA requirements, it used a unitary system of voter registration, which allowed voters to vote in elections for both federal and state office. In late 1994, Mississippi, implemented a new system of dual registration, under which individuals who registered to vote in accordance with the channels mandated by the NVRA would be registered to vote only in federal elections. To avoid review of the dual systems discriminatory impact, Mississippi argued, like Kansas, that it was compelled to establish two separate registration systems. The court held that Mississippi was not compelled to establish a dual system and blocked its implementation in Young. Similarly, Kansas need not create a costly, destructive dual registration system, which will only harm and disfranchise Kansas voters.

In November 2013, the ACLU and the ACLU of Kansas filed suit to challenge Kansas's dual registration system. We represent Kansas citizens who registered to vote using the federal form and have been separated into a lesser class of voters and denied the right to vote in local and state elections, as well as an organization, Equality Kansas, that uses the federal form at its voter registration drives.

Assuming the ineligibility of, or assigning different rights to, qualified electors based on which registration form they use or the date they apply for registration is an arbitrary classification and should not form the basis of denying citizens their right to vote. If you are qualified to vote in the US presidential election, you are certainly qualified to vote in the Kansas Secretary of State's re-election bid next year.

Leading up to the 2012 general election, Julie was a staff attorney with the ACLU of Florida. She was counsel in several voting rights cases, including litigation preventing reductions to early voting, a successful constitutional challenge to restrictions on voter registration drives, a challenge to Florida's purge of the state voter rolls, and a challenge to the non-uniformity of elections laws among Florida counties. She also wrote and testified on the disparate impact of felon disfranchisement and the intersection of over-criminalization and voting rights. Before joining the ACLU, Julie focused on refugee protection issues, working first with the International Rescue Committee on the Thailand-Myanmar border, then with Lawyers for Human Rights in South Africa.

Suggested citation: Julie Ebenstein, Challenging Kansas' Dual System of Voter Registration , JURIST - Sidebar, Jan. 7, 2014, http://jurist.org/sidebar/2014/01/julie-ebenstein-voters-rights-kansas.php.

This article was prepared for publication by Alexandra Cabonor, an associate editor with JURIST's professional commentary service. Please direct any questions or comments to her at professionalcommentary@jurist.org

Opinions expressed in JURIST Commentary are the sole responsibility of the author and do not necessarily reflect the views of JURIST's editors, staff, donors or the University of Pittsburgh.

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