Oral argument not currently available
Issue: Whether the acting executive director of the federal Election Assistance Commission (EAC) has the discretionary authority to deny a state’s request to include state-approved, proof-of-citizenship language on a federal voter-information form.
Congress formed the Election Assistance Commission (EAC) in 2002 as part of the Help America Vote Act (HAVA), which was designed to assist states in the administration of federal elections. At the time, potential voters filling out federal voter registration forms for federal elections needed only to swear under penalty of perjury that they were American citizens. On the state level, a number of states already required proof of citizenship for state-level elections. Some state officials believed a mere oath to be insufficient in preventing voter fraud in federal elections, and they pointed to documented evidence of such voter fraud in their effort to protect public confidence in the integrity of elections. They wanted similar proof-of-citizenship requirements on the federal form.
The Supreme Court had ruled in Arizona v. Inter Tribal Council of Arizona, Inc. (2013), however, that states must submit their voter registration requirements to the EAC for approval. In addition, the Supreme Court held that the National Voter Registration Act of 1993 (NVRA) precluded Arizona from unilaterally requiring documentation beyond that required by the form itself. Adhering to this policy, Arizona and Kansas asked the EAC to modify the federal form to include their state law requirements that voting registration applicants must provide proof of citizenship in the state-specific instructions that accompany the federal form. The EAC denied their request, however, first stating it lacked a quorum of commissioners. It later denied the request outright, stating that the EAC held the authority to determine that the oath was sufficient to determine citizenship.
In August 2013, Kansas, Arizona, and its respective secretaries of state filed a lawsuit against the EAC and Alice Miller, the EAC's acting executive director. They wanted the court to order the EAC or Miller to modify the state-specific instructions of the federal form to require applicants in Kansas and Arizona to submit proof of citizenship documents in accordance with Kansas and Arizona state law. They also wanted the National Voting Registration Act (1993) declared unconstitutional as applied.
The Court Below:
The United States District Court of Kansas was the first to hear the case. It ruled in favor of Kansas and Arizona. States have the power to require proof of citizenship, the court held, and the EAC exceeded its statutory authority in denying the states’ request. The EAC lacks the discretionary authority to deny such a request. Indeed, the court ordered the EAC to immediately add the citizenship-requirement language as the states had requested. See the opinion here:
Kobach v. EAC, 6 F.Supp.3d 1252 (D. Kans., 2014)
The EAC and others filed a number of motions asking for the district court to stay its order to the EAC pending an appeal. The court declined to issue the stay, however, and the order for the EAC to immediately include the state-requested language remained in place. See the opinion here:
Kobach v. EAC, No. 13–cv–4095–EFM–TJJ (D. Kans., 2014)
The EAC appealed to the 10th Circuit, which reversed the lower court’s ruling. The court held that it was within the authority of the EAC to deny such a request. See the opinion here:
Kobach v. EAC, 772 F.3d 1183 (10th Cir., 2014)
Arizona and Kansas filed a petition for a writ of certiorari in the Supreme Court. The Court denied the petition, however.
Question(s) before the 10th Circuit:
“The arguments of the parties and intervenors require us to address four issues: (1) as preliminary matters, (a) is the Executive Director's decision a final agency action over which we may exercise jurisdiction, and (b) if so, is it procedurally valid, such that we may reach the merits; (2) does the EAC have a nondiscretionary duty to approve the states' requests under the NVRA; (3) is the Executive Director's decision arbitrary and capricious; and (4) is the Executive Director's decision unconstitutional?”
CCJ filed an amicus curiae brief in support of Kobach in the Supreme Court
This case is about federalism—whether it is the states or Congress that has the constitutional authority to decide voter qualifications for federal elections. The specific voter qualification under scrutiny here is a proof-of-citizenship requirement. States have become increasingly concerned with illegal alien voting, and state legislatures have passed laws requiring proof-of-citizenship to vote in both state and federal elections. Governing this case is Article I, §2, which reads, “The House of Representatives shall be composed of Members chosen every second Year by the People of the several States, and the Electors in each State shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature.” On a procedural note, with a lack of a quorum in the EAC commission, the chief operating officer usurped the powers of a “principal officer of the United States” by assuming the role of “acting executive director,” a position unlawfully lacking supervision, and she unilaterally denied the state’s request. Congress never intended to give such power to an individual when it established the commission, nor could Congress do so constitutionally even if it wanted.
States have serious concerns that the national government, especially the executive branch, is not only facilitating but encouraging the smuggling of illegal aliens into the country. Indeed, 26 states filed a lawsuit based on that concern. Under often-unilateral executive actions, millions of noncitizens are being provided government documents and using them to obtain official government identification. Under traditional practices, this identification has been considered sufficient to participate in state and federal elections. In response to this development, states have passed laws requiring proof-of-citizenship for voting.
The 10th Circuit erroneously relied on Article I, §4 of the Constitution to determine that Congress has the power to determine the qualifications of electors. This section of Article I grants Congress the power to “make or alter” state regulations regarding only three areas of federal elections: the time, places, and manner of holding elections for national senators and representatives. This was not a general grant of congressional power to regulate the qualifications of voters. Rather, it was a fail-safe clause to allow the national government to override state regulations in case the states abused their regulatory power by manipulating the mechanics of federal elections and threatening the formation of the House of Representatives.
Article I, §2, however, clearly reserves the power to determine the qualifications of voters in state and federal elections to the state legislatures. The federal government’s power extends only to the when, where, and how of federal elections—not to the “who.” At the time of the Founding, the states already determined voting qualifications for their state electors, and the federal government saw no need to create uniform qualifications among the several states. One of the primary purposes for denying the federal government the power to determine qualifications was to prevent the formation of an aristocracy in Congress. If the national government had the power to expand qualifications, they could indeed restrict qualifications of voters as well. Qualified voters could thus be restricted only to those supporters of sitting or preferred representatives. Similarly, reserving the power to the states ensured their existence in the new system of government, which many feared might annihilate the states and their spheres of sovereignty. The idea was that the formation of Congress depends on the cooperation of the states. There is no historical or constitutional basis for the position that it is a national power to determine the qualifications for electors. The power is strictly and exclusively reserved to the state legislatures.
Finally, a government employee without supervision undertook to exercise significant authority– the authority that Congress vested in the EAC. Further, the individual acted in a sensitive area where the limited power of Congress was already butting up against the powers specifically reserved to the states by the Constitution. Nothing in the law shows that Congress intended such a decision to be made by a mere employee.
Final Outcome: The Supreme Court denied the writ of certiorari. Thus the Supreme Court did not consider CCJ’s argument. The 10th Circuit’s ruling currently stands, and the states’ request to include proof-of-citizenship on the federal election form has not been honored.