President Trump's newly created voter fraud commission has an obvious target in mind: the 3 million to 5 million non-citizens who Trump claims, without evidence, voted illegally in the 2016 elections.
But if the goal is to establish tighter proof of citizenship requirements for federal elections, the panel will have to recommend ways to circumvent a Supreme Court ruling from 2013, as well as a 2016 decision by the U.S. Court of Appeals for the 10th Circuit.
The high court's 7-2 decision said states cannot add to mail-in federal voter registration requirements by demanding proof of citizenship. It struck down a 2004 initiative in Arizona that required physical proof when registering by mail, citing the 1993 "motor voter" law that was designed to simplify voter registration procedures. That law lets registrants simply assert citizenship, under penalty of perjury.
The federal law "forbids states to demand that an applicant submit additional information beyond that required by the federal form," Justice Antonin Scalia said in issuing his ruling. Justices Clarence Thomas and Samuel Alito dissented.
The 10th Circuit's unanimous ruling in October blocked Kansas from requiring additional proof of citizenship from people registering at motor vehicle bureaus. That decision applies to Kansas as well as Colorado, New Mexico, Oklahoma, Utah and Wyoming.
Only Arizona and Kansas require proof of citizenship before residents can register to vote, and the court rulings block that from happening at DMV offices and in mail registrations. About 30 states have more general voter identification requirements at the polls, designed to thwart impostors seeking to cast illegal ballots.
Kansas Secretary of State Kris Kobach, who has advised Trump on voter fraud and will help Vice President Pence lead the new commission, is perhaps the nation's leading voice against noncitizen voting. Last month, he announced the state's first conviction for voting fraud — a Peruvian national who voted in 2012 and 2014 before becoming a U.S. citizen.
Kobach has lost several court battles with voting rights groups such as the American Civil Liberties Union and the Brennan Center for Justice at New York University School of Law in his effort to change federal rules so that citizenship documents are required. Those groups now fear that the commission will recommend to Congress the changes he has been unable to win in court.
In contrast to the single Kansas conviction, a Brennan Center survey of election officials in areas of the country with the largest numbers of noncitizens found that of 23.5 million votes, only about 30 people were investigated or prosecuted.
States can require such documentation from people who do not register by mail or at DMV offices. Wendy Weiser, director of the Brennan Center's democracy program, said tens of thousands of people have been disenfranchised in Arizona and Kansas as a result of the additional requirements — most of whom turn out to be citizens.
“There isn’t a significant problem of noncitizen voting in this country,” Dale Ho, director of the ACLU's voting rights project, said. "People aren't streaming across the border to vote for Kansas agriculture commissioner.”
Arizona voters approved Proposition 200 in 2004, requiring more specific proof of citizenship. During the next three years, more than 30,000 people were turned away for failing to provide documentation. Voter registration dropped by 44% in Maricopa County, which includes Phoenix.
A federal district court upheld the referendum, but it was thrown out on appeal. The state then brought the case to the Supreme Court.
Kansas passed its Secure and Fair Elections Act in 2011, and it took effect two years later. Citizenship papers were to be required beginning last year, but the federal appeals court struck it down in certain instances.
At the crux of the issue is the Constitution's elections clause, which says states can set the times, places and manner of holding federal elections — but that Congress can make changes. During oral argument in 2013, the Supreme Court's more conservative justices commiserated with Arizona officials, who deal with a disproportionate share of the nation's illegal immigrants. But they said states must seek to change the federal law, rather than going around it.
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