DENVER — A federal appeals court will decide whether Kansas has the right to ask people who register to vote when they get their driver’s licenses for proof that they’re citizens, a decision which could affect whether thousands have their ballots counted in November’s election.
Three judges from the 10th Circuit Court of Appeals heard arguments in the case Tuesday from Kansas Secretary of State Kris Kobach and the American Civil Liberties Union but didn’t indicate how soon they could rule.
Kansas wants the court to overturn a ruling by a federal judge in May that temporarily blocked the state from disenfranchising people who registered at motor vehicle offices but didn’t provide documents such as birth certificates or naturalization papers. That was about 18,000 people at the time. If the order is allowed to stand, the state says up to an estimated 50,000 people who haven’t proven they’re citizens could have their votes counted in the fall.
Since 1993, states have had to allow people to register to vote when they apply for or renew their driver’s licenses. The so-called motor-voter law says that people can only be asked for “minimal information” when registering to vote, allowing them to simply affirm they are citizens.
The ACLU claims the law intended to increase registration doesn’t allow states to ask applicants for extra documents. It also says that motor vehicle clerks don’t tell people renewing existing licenses that they need to provide the documents, leaving them under the mistaken impression that their registration is complete when they leave the office.
Dale Ho, director of the ACLU’s voting rights project, told the judges that Kansas can prosecute any non-citizens who register to vote and can also better train its motor vehicle clerks so they don’t offer the option of registering to vote to people who aren’t citizens. Ho also said that Congress considered but rejected an amendment that would have allowed states to ask for proof of citizenship.
Kobach, who is a national leader in Republican voter requirement efforts, told the judges the law doesn’t expressly bar states from asking for proof of citizenship.
Kansas’ law requires all voters to prove their citizenship, whether they are applying at a motor vehicle office or elsewhere in the state. After the hearing, he said it doesn’t make sense to hold voters to a higher standard just because they didn’t register at a motor vehicle office.
“It’s an absurd result. Why would Congress want us to do that,” he said.
Kobach has championed the documentation requirement as a way to prevent non-citizens from voting, particularly immigrants who are in the U.S. illegally. Critics contend the requirement suppresses turnout because people who are citizens may not be able to immediately provide documentation.
In the May ruling, U.S. District Judge Julie Robinson said evidence showed only three instances in Kansas where noncitizens voted in a federal election between 1995 and 2013, and about 14 noncitizens attempted to register during that time. Robinson said the number of people disenfranchised outweighed the harm of those cases.
Kobach said the state would be able to handle a ruling close to the election because the voters subject to May’s ruling will vote with provisional ballots and whether they’re counted won’t be decided until after Election Day.
Alabama, Arizona and Georgia have similar registration requirements on the books, but Alabama and Georgia are not currently enforcing them. Arizona does not require additional citizenship papers from people registering at motor vehicle offices beyond what’s already required to get a driver’s license.