Do I Need Proof Of Citizenship To Register To Vote

Location:
VOTERS, REGISTRATION OF;

OLR Research Report

DOCUMENTARY PROOF OF CITIZENSHIP FOR VOTER REGISTRATION

By: Kristin Sullivan, Chief Analyst

ISSUE

Does either federal or state law require documentary proof of citizenship (DPOC) for voter registration? Practice other states require DPOC?

The Office of Legislative Enquiry is not authorized to effect legal opinions, and this study should not be considered one.

SUMMARY

The National Voter Registration Act (NVRA) of 1993 (P.L. 103-31) establishes sure voter registration provisions for federal elections (see Background). Well-nigh states, including Connecticut, have adopted these provisions and extended them to state and local elections. Neither the NVRA nor Connecticut law requires DPOC for voter registration.

While the NVRA does non specifically authorize or prohibit DPOC, it does prepare parameters on the documentation that states may request for registering voters for federal elections. It also requires applicants to sign under penalty of perjury that they meet voter eligibility requirements, including citizenship.

At least four states (Arizona, Alabama, Georgia, and Kansas) have enacted laws establishing DPOC voter registration requirements. In recent years, however, a handful of federal lawsuits, including one that reached the U.S. Supreme Court, take successfully challenged the awarding of these laws to federal elections. Generally speaking, the courts have held that with respect to elections for federal office, state DPOC laws are preempted by the NVRA under the Elections Clause of the U.Due south. Constitution (Art. I. � 4, cl. 1). More specifically, they have institute that (1) states have not shown that DPOC requirements are "necessary" to institute U.S. citizenship and (2) testament nether penalty of perjury is the presumptive corporeality of information necessary for country election officials to comport out their eligibility-assessment and registration duties.

Despite these challenges, it appears that states may bifurcate their voter registration systems by requiring DPOC to register for state and local elections (i.eastward., a voter who does non provide DPOC could vote for federal offices only). Arizona currently operates a bifurcated registration arrangement. Kansas operated 1 in 2014, simply Kansas courts ruled in two 2016 cases that the system violated state police. We are unaware of whatsoever challenges to Arizona ' s bifurcated system.

NVRA DOCUMENTATION PARAMETERS

The NVRA requires covered states (run across Groundwork) to offer eligible citizens the opportunity to annals to vote by (1) applying equally function of a motor vehicle commuter ' south license application or renewal, (2) sending a mail-in application, or (3) applying in person at a designated voter registration agency. In each case, the NVRA establishes parameters on the documentation that states may request for registration purposes.

Voter Registration Form with Driver ' s License

Nether Department five of the NVRA, the voter registration portion of a driver ' due south license application:

1. may crave only the minimum information necessary to (a) prevent indistinguishable voter registrations and (b) enable state election officials to assess applicants' eligibility and administrate the election process, including voter registration;

2. may not require information that duplicates data required for the driver ' s license portion;

3. must state each eligibility requirement, including citizenship, and crave applicants to sign an attestation nether penalty of perjury that they meet the requirements; and

4. must state the penalties for submitting a false voter registration application ( 52 USC � 20504 ).

These provisions are codified in state constabulary at CGS � 9-19h .

Mail Voter Registration Grade

Section 6 of the NVRA requires covered states to accept and apply the national post voter registrat ion form ("Federal Class") developed by the U.S. Ballot Assistance Commission (EAC) ( 52 USC � 20505 ). In addition to accepting and using the Federal Course, states may develop and apply their ain post-in forms, provided they encounter the NVRA ' s criteria.

The requirements that the NVRA sets for the Federal Course are similar to those that it sets for the voter registration portion of the driver ' s license application. Principally, the form:

1. may require only such identifying and other data every bit is necessary to enable state election officials to assess the applicant ' south eligibility and administrate the election procedure, including voter registration;

two. must state each eligibility requirement, contain an attestation, and require the bidder to sign under penalty of perjury; and

3. must state the penalties for submitting a fake voter registration application ( 52 USC � 20508 ).

In conjunction with the NVRA ' s requirements, the federal Help America Vote Act of 2002 (HAVA) (P.L. 107-252) requires that the Federal Form include additional data. For case, it requires that the course ask "Are yous a citizen of the United States of America?" and "Will you be 18 years of age on or before election day?" (For more information on HAVA ' due south voter registration requirements, see OLR Report 2016-R-0104 .)

Provisions on mail-in voter registration requirements are codification in state law at CGS �� 9-23g , -23h , -23l , and -23m .

Voter Registration Agencies

Under Section seven of the NVRA, covered states must designate voter registration agencies, including offices providing public assistance or services to individuals with disabilities and Armed Forces recruitment offices. They may likewise designate public libraries, schools, or unemployment compensation offices, among other locations ( 52 USC � 20506 ).

These voter registration agencies must distribute one of 3 types of voter registration forms: one) the Federal Form, 2) the land mail-in voter registration form, or 3) their own class. Equally discussed above, the land post-in voter registration form must meet the NVRA ' s criteria. An agency ' s own course must also encounter NVRA criteria and exist country-approved.

Provisions on voter registration agencies are codification in state law at CGS � ix-23n .

CHALLENGES TO STATE DPOC LAWS

In recent years, efforts by Arizona, Alabama, Georgia, and Kansas to require DPOC to register to vote in federal elections have been successfully challenged equally violating the NVRA. Below we briefly describe the about relevant cases, focusing primarily on court holdings related to DPOC voter registration requirements. Other components of the decisions (eastward.g., standing, procedural problems, and standards of review) are not discussed.

U.South. Supreme Court Ruling

In 2004, Arizona voters passed a ballot initiative requiring individuals to provide DPOC when registering to vote and voting in federal, land, and local elections. A group of Arizona residents and nonprofit organizations challenged the law, which required election officials to pass up any voter registration awarding, including a Federal Grade, unaccompanied by DPOC. The example eventually reached the U.Southward. Supreme Court, which examined whether the NVRA provision that requires states to "take and use" the Federal Course preempted Arizona law (Arizona 5. Inter Tribal Council of Ariz., Inc., (ITCA) 133 S.Ct. 2247 (2013)).

In a seven-two decision, the Courtroom held that Arizona ' s DPOC requirement, as applied to Federal Grade applicants and federal elections, was preempted. In reaching its conclusion, the court reasoned that under the Elections Clause, Congress has the ability to preempt land laws concerning when, where, and how federal elections are held, including registration procedures.

The court acknowledged that under the Qualifications Clause of the U.S. Constitution (Art. I, � ii, cl. ane), (1) states accept the authority to decide voter qualifications for federal elections and (2) the NVRA authorizes them to create state-specific voter registration forms, which may require data in addition to that which the Federal Form requires. Notwithstanding, the Court held that states nonetheless must accept the Federal Form:

No matter what procedural hurdles a State ' s own grade imposes, the Federal Class guarantees that a simple means of registering to vote in federal elections will be available. Arizona ' southward reading would permit a State to need of Federal Form applicants every additional piece of information the state requires on its land-specific form. If that is so, the Federal Course ceases to perform any meaningful function and would be a feeble means of increasing the number of eligible citizens who register to vote in elections for Federal part (internal quotation marks omitted).

The court also held that Arizona could petition the EAC to add land-specific instructions to its Federal Form so that it could include data it deemed necessary to determine voter eligibility, such as DPOC. If the EAC refused, Arizona could seek judicial review under the federal Administrative Procedure Act (APA) to "found in a reviewing courtroom that a mere oath volition not suffice to effectuate its citizenship requirement and that the EAC is therefore under a nondiscretionary duty to include Arizona ' s concrete evidence requirement on the Federal Form."

Federal Form: EAC Rejects State-Specific DPOC Requests

Based on ITCA, both Arizona and Kansas requested that the EAC add state-specific DPOC instructions to their Federal Forms. In Jan 2014, the EAC denied their requests, finding that DPOC was not necessary to ensure that noncitizens did not register to vote. The EAC cited to the (1) Federal Class ' southward existing protections against noncitizens registering (due east.1000., attestation under punishment of perjury); (2) limited evidence that noncitizens register to vote; and (3) additional mechanisms for guarding against noncitizen registrations, including criminal prosecution and coordination with driver licensing agencies. It noted that:

As long every bit a state is able to identify illegal registrations and accost any violations (whether through removal from the voter rolls, criminal prosecution, and/or other means), and the occurrence of such violations is rare, then the state is able to enforce its voter qualifications. And as the Supreme Court noted in Inter Tribal Council, zip precludes a State from "deny[ing] registration based on information in their possession establishing the applicant ' southward ineligibility" (Memorandum of Conclusion, DOCKET NO. EAC-2013-0004 (2014)).

In response to the EAC ' s conclusion, Arizona and Kansas sought judicial review under the APA. While the states prevailed in commune court, they lost on entreatment (Kobach v. U.S. Election Help Commission (EAC), 772 F.3d (10^th Cir. 2014)). The 10th Excursion Courtroom of Appeals held that pursuant to ITCA, the EAC was (1) authorized past the NVRA to make up one's mind what information state officials need to assess an bidder ' s voting eligibility and (2) non mandated to approve state-requested changes to the Federal Class. It also held that the states failed to run into their "evidentiary burden of proving that they cannot enforce their voter qualifications considering a substantial number of noncitizens have successfully registered using the Federal Course."

The court rejected usa ' arguments that (1) their Qualifications Clause powers trump Congress ' Elections Clause powers and (two) the EAC ' s refusal to modify the Federal Course unconstitutionally precluded them from enforcing their laws intended to forestall noncitizen voting. The U.South. Supreme Court denied certiorari in 2015.

Federal Form: EAC Grants State-Specific DPOC Requests

In Nov 2015, the EAC hired a new executive managing director, Brian Newby, who in January 2016 approved state-specific DPOC instructions for Alabama, Georgia, and Kansas pursuant to earlier requests. The League of Women Voters and two individuals filed arrange seeking declaratory and injunctive relief invalidating the Newby decisions. They claimed that Newby ' s action violated the APA because it was outside his scope of authority and contrary to the EAC ' s rules and policy. They likewise claimed that the decision violated the NVRA because information technology lacked supporting bear witness that DPOC requirements were "necessary" to found U.Southward. citizenship.

In June 2016, the district court denied the asking for a preliminary injunction for lack of irreparable harm. But in September 2016, the U.Due south. Court of Appeals for the D.C. District reversed the lower courtroom ' s decision, and issued a preliminary injunction confronting the EAC (League of Women Voters, et al. v. Newby (Newby), No. 16-5196 (D.C. Cir. 2016)).

In its ii-one opinion, the court concluded that the plaintiffs had "a substantial (perhaps overwhelming) likelihood of success on the merits" of the instance, stating that it was "difficult to imagine a more articulate violation" of administrative law. Equally the court explained, Newby failed to encounter the APA ' s requirement that an agency "examine the relevant data and articulate a satisfactory explanation for its activeness including a rational connection between the facts found and the selection made." Like the Tenth Circuit in EAC, the court rejected the contention that the EAC ' southward duties were ministerial and states could dictate the Federal Form ' s content, noting that the states had not made an evidentiary showing demonstrating the need for DPOC. The case was remanded to the district courtroom, and the parties have filed cross motions for summary judgement.

Voter Registration Form with Driver ' due south License

In a separate instance, the League of Women voters and individual residents challenged a Kansas police force requiring DPOC submission with the voter registration course that must accompany a driver's license application or renewal. In May 2016, the district courtroom issued a preliminary injunction, belongings that the plaintiffs made a strong showing that the NVRA preempted the country constabulary, and ordering Kansas to register those voters who were previously prevented from registering because they did non provide DPOC at the Department of Motor Vehicles. The country appealed.

The Tenth Circuit Court of Appeals upheld the lower court ' south determination, holding that the land voter registration portion of a driver ' s license application "may crave only the minimum amount of data necessary to . . . enable State election officials to assess the eligibility of the applicant and to administrate voter registration and other parts of the ballot process." Information technology likewise held that the attestation nether penalty of perjury is the "presumptive minimum amount of information necessary" for state ballot officials to carry out their eligibility-assessment and registration duties (Fish, et al v. Kobach, (Fish) 840 F.3d 710 (ten^th Cir. 2016)).

The court explained that "as it pertains to the citizenship requirement, the presumption ordinarily can be rebutted (i.e., overcome) only past a factual showing that substantial numbers of noncitizens accept successfully registered to vote under the NVRA ' s testament requirement." Since the state failed to make that showing, the courtroom ended that the DPOC requirement was more the minimum amount of information necessary and, therefore, preempted. The case was remanded to the district court, which recently extended the discovery menstruation to permit Kansas an opportunity to brand the required factual showing.

BIFURCATED VOTER REGISTRATION SYSTEMS

Although the Tenth Circuit Court of Appeals in EAC ruled against Arizona ' s and Kansas ' southward DPOC requirements with respect to federal elections, information technology noted that the NVRA did not prohibit them from requiring DPOC for state elections. Both states bifurcated their voter registration systems later the Supreme Court ' s ITCA decision; individuals who provided DPOC could vote in federal, land, and local elections; those who did non could vote merely in federal elections.

The Tenth Excursion noted that DPOC requirements for state elections could be challenged as violating a land ' s constitution or statutes. Kansas administered a bifurcated voter registration arrangement for the 2014 ballot, just in two 2016 cases state courts ruled that Kansas law required that qualified Federal Form applicants exist registered for all elections. They thus enjoined the state from using a bifurcated organization for the 2016 election (Belenky five. Kobach, No. 2013-CB-13 (Shawnee Cnty. Dist. Ct., Jan. 15, 2016) and Brown v. Kobach, No. 2016-CV-550 (Shawnee Cnty. Dist. Ct., November. 4, 2016)).

Arizona ' s bifurcated system remains in consequence, and we are not enlightened of any court challenges to information technology. In an Oct 2013 stance, the country ' s chaser general concluded that:

1. individuals who apply using the Federal Form without DPOC are non "qualified electors" for state and local elections and are eligible to vote for federal offices simply;

2. Arizona law authorizes the issuance of "federal only" ballots for those voters who are only eligible to vote for federal offices;

3. individuals who used the Federal Form and did not provide DPOC cannot sign state and local candidate, initiative, referendum, or recall petitions ( O pinion No: I13-011 (R13-016) ).

BACKGROUND

Stated Purposes of the NVRA

Congress enacted the NVRA, also known every bit the "Motor Voter Deed," to:

i. increase the number of eligible citizens who register to vote,

2. help authorities agencies implement the act ' due south provisions in a way that enhances voter participation,

3. protect the integrity of the balloter process, and

4. ensure that agencies maintain accurate and current voter registration rolls ( 52 USC � 20501(b) ).

Covered States Under the NVRA

Co-ordinate to the U.S. Section of Justice, six states are exempt from the NVRA because they take had, continuously since August ane, 1994, (1) Election Twenty-four hours registration (Idaho, Minnesota, New Hampshire, Wisconsin, and Wyoming) or (2) no voter registration requirements (Due north Dakota). The remaining 44 states and Washington D.C. are covered.

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