Monday, October 7, 2013

READ: Arizona and Kansas Moving Forward Together To Begin Separate Federal and State Election Ballots; U.S. Supreme Court Has Struck Down Similar Plans Recently

Arizona's Attorney General Tom Horne and Secretary of State Ken Bennett are not going it alone on their plan to have separate federal-office-only ballots for registered voters who failed to show proof of citizenship by using the federal motor voter form;  Kansas Secretary of State Kris Kobach is laying similar groundwork there.

Horne issued his Attorney General Opinion earlier today (posted in full below), answering Secretary of State Ken Bennett's questions about whether the people who do not provide proof of citizenship when they register to vote can be given "federal election only" ballots and whether their signatures can be struck from petitions for state and local offices and issues. 

The question and opinion arose after the U.S. Supreme Court's decision this past June in the Arizona v. Inter-Tribal Council of Arizona struck down Arizona's law requiring people to show proof of citizenship when they register to vote.  

Although he has not made an official announcement yet, news leaked out Friday night that Kansas' Secretary of State Kris Kobach - who has worked with Arizona officials before* - is laying the groundwork for similar plans there.  Kansas and Arizona have jointly sued the U.S. Election Assistance Commission at the suggestion of Supreme Court Justice Antonin Scalia - the EAC's answer in the case is due later this month (October 28).

This is not the first time that a state has decided to try setting up a separate ballot for people registering under a national voter law designed to standardize and ease access to the ballot box.  In 1997, the U.S. Supreme Court unanimously (also including Justice Scalia) struck down Mississippi's efforts to minimize the effects of the National Voter Registration Act of 1993.  The decision in Young v. Fordice was based upon the now-struck down Section 5 of the Voting Rights Act; however, given the litigation addressing other sections of the VRA, it is not hard to imagine that the Arizona/Kansas efforts might also be receiving judicial scrutiny.  (Particularly in Arizona, which was a "pre-clearance state" until this year's Supreme Court Shelby County v. Holder VRA decision.)

* Kobach helped write Arizona's well-known SB 1070 anti-illegal immigration law (which went to the U.S. Supreme Court), and was hired by Maricopa County Sheriff Joe Arpaio to train MCSO deputies about immigration law.
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