Supreme Court Justice Antonin Scalia (AP/Charles Rex Arbogast)

A new low in the GOP's despicable war on voters

A Bush-appointed judge, following Scalia's lead, rendered a devastating decision in favor of voter ID on Wednesday

Steven Rosenfeld
March 20, 2014 5:01PM (UTC)

This article originally appeared on AlterNet.

AlterNet Once again, right-wing Republican politicians and Republican-appointed federal judges have undermined the right to vote.

In a U.S. District Court ruling Wednesday that could dramatically upend the voter registration process if it spreads across the country, a Kansas judge found that his state and Arizona can force new voters to show citizenship documents when registering to vote—as opposed to signing a legal oath on the federal voter registration form.


“State election officials maintain authority to determine voter eligibility,” wrote District Judge Eric Melgren, appointed by President George W. Bush, in a GOP-backed suit that went after an obscure agency, the Election Assistance Commission, which designs the federal voter form found in post offices and used in registration drives. “Arizona and Kansas have established that their state laws require their election officials to assess the eligibility of voters by examining proof of their U.S. citizenship beyond a mere oath.”

The documentation, if upheld by higher courts, would mean that residents in these and other states with similar laws, like Georgia and Alabama, would have to present either a passport, birth certificate, naturalization or tribal papers to become a legal voter. A driver’s license, college ID, or signature given under penalty of perjury would no longer suffice. Thus, if Melgren’s decision—which follows a template laid out last June by U.S. Supreme Court Justice Antonin Scalia in an earlier phase of this case—stands, the GOP’s right wing will have created a new barrier to voting.

“This is a really big victory, not just for Kansas and Arizona but for all 50 states,” Kansas Secretary of State Kris Kobach boasted to the Associated Press on Wednesday. “Kansas has paved the way for all states to enact proof-of-citizenship requirements.”


Kobach is best-known as the architect of 2012 GOP presidential candidate Mitt Romney’s self-deportation immigration policy, which he said was a “ more humane” way for the federal government to remove illegal immigrants. He and Arizona Gov. Jan Brewer, a Republican and former secretary of state, have been among the country’s most strident advocates of tougher immigration laws.

Kobach also has falsely proclaimed that fraud in the voter registration process is rampant. Voter registration fraud—impersonating someone else to vote more than once—is rarer than getting killed by lightning, experts have found. But it is cited as a belief among Republicans who believe that Democrats will do anything to win. Thus, they embrace a policing-oriented “solution” that happens to tilt the electoral playing field in their favor by complicating voting for their political opponents.

Judge Melgren’s ruling is the latest twist in a decade-long legal battle over adding proof of citizenship to the voter registration process. Republicans in many states have toughened voter ID laws in recent years, by narrowing forms of acceptable ID that otherwise eligible voters must present to get a ballot. In Texas, for example, college IDs are not accepted at polls while gun permits are. But the proof of citizenship requirement would erect a new barrier that is closer to the starting gate of the process—by barring registration.


The litigation dates back to 2004, when Arizona passed Proposition 200, which required the citizenship proof to register to vote and also required poll workers to report illegal voters to immigration officials. That law has been called a modern version of Jim Crow, or segregationist voting laws meant to discourage specific slices of the electorate from voting.

The politics are transparent. Republicans know that people of color, college students, women and the poor—who are more likely to lack this form of ID—are more likely to support Democrats and vote at the polls. In contrast, the GOP typically focuses on absentee ballot campaigns, or voting by mail, for its party members where tougher voter ID standards do not apply.


Soon after Prop. 200 passed, more than 31,000 Arizonans were rejected as voters, and voter applications from registration drives fell 44 percent in the state’s largest county, civil rights groups said in testimony submitted on January 25, 2014 to the Election Assistance Commission—which, until Wednesday’s ruling, refused to add the proof of citizenship requirement to the federal registration form.

In Kansas, nearly 15,700 prospective voters have not been added to official voter rolls in 2014 because of proof-of-registration requirement, the Associated Press reported Wednesday.

Citizens Without Proof [is] a study we did showing that seven percent of eligible citizens lack ready access to documentary proof of citizenship,” said Brennan Center for Justice counsel Jonathan Brater, who helped represent the League of Women Voter’s national, Kansas and Arizona chapters. “Twelve percent of citizens earning less than $25,000 per year lack access [to citizenship documents], and only 48 percent of voting-age women with ready access to their birth certificate have a birth certificate with a current legal name.”


Spokespeople for the Election Assistance Commission (EAC), Project Vote and other civil rights groups said that they were studying the decision, which all but suggests that they will appeal. Judge Melgren told the EAC to immediately redesign its registration form so states like Kansas and Arizona could require the documented proof. Whether a federal appeals court will suspend that order while the litigation continues is an open question.

Either way, it’s important to note the political role played by GOP-appointed judges—including Supreme Court Justice Scalia—in creating new voting barriers. From the 1960s civil rights era until recently, voter eligibility has not been based on the form of ID in one’s pocket. It’s been based on legal standards: one’s age, residency, U.S. citizenship and mental fitness, all attested by a signed oath under penalty of federal perjury.

When Arizona’s proof of citizenship requirement came before the Supreme Court last year, here’s how’s Lyle Denniston, Washington’s most experienced Supreme Court reporter, summarized the majority decision written by Scalia.


On the particular point at issue in this case — Arizona’s requirement of proof of citizenship before one may register to vote or actually vote — the Scalia opinion said that a state was free to ask the federal government for permission to add that requirement.  And, Scalia said, if that doesn’t work — either because the federal agency that would deal with such a request is either not functioning or says no — then a state would be free to go to court and make an argument that it has a constitutional right to insist on proof of citizenship.

This describes exactly what the states of Arizona and Kansas did. They challenged the EAC to update the federal voter form and when it did not, they sued in federal court. But an even more telling sign of just how political these federal judges are is what is not in the fine print of Judge Melgren’s ruling. The ruling does not say why a signed oath attesting to one’s U.S. citizenship is insufficient. Instead, Judge Melgren says that any voting requirement adopted by a state legislature is sufficient. That justification is an open invitation to red states with Republican-run statehouses to go after likely Democratic voters.

“These are new voters that are getting active,” Democratic Arizona state Sen. Steve Gallardo told the AP. “They tend to be a lot more progressive and liberal… particularly when it comes to issues like medical marijuana, same-sex marriage, more progressive type issues. That’s what this ruling does now—it makes it more difficult for this segment of voters, students, to vote.”

Steven Rosenfeld

Steven Rosenfeld is the editor and chief correspondent of Voting Booth, a project of the Independent Media Institute. He has reported for National Public Radio, Marketplace, and Christian Science Monitor Radio, as well as a wide range of progressive publications including Salon, AlterNet, the American Prospect, and many others.

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Alternet Antonin Scalia Voter Fraud Voter Id Voting Rights

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