ISSUE

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

The Office of Legislative Research is not authorized to issue legal opinions, and this report should not be considered one.

SUMMARY

The National Voter Registration Act (NVRA) of 1993 (P.L. 103-31) establishes certain voter registration provisions for federal elections (see BACKGROUND). Most 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 not specifically authorize or prohibit DPOC, it does set 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, have successfully challenged the application 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.S. Constitution (Art. I. § 4, cl. 1). More specifically, they have found that (1) states have not shown that DPOC requirements are “necessary” to establish U.S. citizenship and (2) attestation under penalty of perjury is the presumptive amount of information necessary for state election officials to carry 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.e., a voter who does not provide DPOC could vote for federal offices only). Arizona currently operates a bifurcated registration system. Kansas operated one in 2014, but Kansas courts ruled in two 2016 cases that the system violated state law. We are unaware of any challenges to Arizona's bifurcated system.

NVRA DOCUMENTATION PARAMETERS

The NVRA requires covered states (see BACKGROUND) to offer eligible citizens the opportunity to register to vote by (1) applying as part of a motor vehicle driver's 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

Under Section 5 of the NVRA, the voter registration portion of a driver's license application:

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

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

3. must state each eligibility requirement, including citizenship, and require applicants to sign an attestation under 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 law at CGS § 9-19h.

Mail Voter Registration Form

Section 6 of the NVRA requires covered states to accept and use the national mail voter registration form (“Federal Form”) developed by the U.S. Election Assistance Commission (EAC) (52 USC § 20505). In addition to accepting and using the Federal Form, states may develop and use their own mail-in forms, provided they meet the NVRA's criteria.

The requirements that the NVRA sets for the Federal Form 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 information as is necessary to enable state election officials to assess the applicant's eligibility and administer the election process, including voter registration;

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

3. must state the penalties for submitting a false 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 information. For example, it requires that the form ask "Are you 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's voter registration requirements, see OLR Report 2016-R-0104.)

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

Voter Registration Agencies

Under Section 7 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 also designate public libraries, schools, or unemployment compensation offices, among other locations (52 USC § 20506).

These voter registration agencies must distribute one of three types of voter registration forms: 1) the Federal Form, 2) the state mail-in voter registration form, or 3) their own form. As discussed above, the state mail-in voter registration form must meet the NVRA's criteria. An agency's own form must also meet NVRA criteria and be state-approved.

Provisions on voter registration agencies are codified in state law at CGS § 9-23n.

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 as violating the NVRA. Below we briefly describe the most relevant cases, focusing primarily on court holdings related to DPOC voter registration requirements. Other components of the decisions (e.g., standing, procedural issues, and standards of review) are not discussed.

U.S. Supreme Court Ruling

In 2004, Arizona voters passed a ballot initiative requiring individuals to provide DPOC when registering to vote and voting in federal, state, and local elections. A group of Arizona residents and nonprofit organizations challenged the law, which required election officials to reject any voter registration application, including a Federal Form, unaccompanied by DPOC. The case eventually reached the U.S. Supreme Court, which examined whether the NVRA provision that requires states to “accept and use” the Federal Form preempted Arizona law (Arizona v. Inter Tribal Council of Ariz., Inc., (ITCA) 133 S.Ct. 2247 (2013)).

In a 7-2 decision, the Court held that Arizona's DPOC requirement, as applied to Federal Form applicants and federal elections, was preempted. In reaching its decision, the court reasoned that under the Elections Clause, Congress has the power to preempt state 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, § 2, cl. 1), (1) states have the authority to determine voter qualifications for federal elections and (2) the NVRA authorizes them to create state-specific voter registration forms, which may require information in addition to that which the Federal Form requires. However, the Court held that states nonetheless must accept the Federal Form:

No matter what procedural hurdles a State's own form imposes, the Federal Form guarantees that a simple means of registering to vote in federal elections will be available. Arizona's reading would permit a State to demand of Federal Form applicants every additional piece of information the state requires on its state-specific form. If that is so, the Federal Form 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 office (internal quotation marks omitted).

The court also held that Arizona could petition the EAC to add state-specific instructions to its Federal Form so that it could include information 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 “establish in a reviewing court that a mere oath will 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 January 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 Form's existing protections against noncitizens registering (e.g., attestation under penalty 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 as a state is able to identify illegal registrations and address 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, nothing precludes a State from “deny[ing] registration based on information in their possession establishing the applicant's ineligibility" (Memorandum of Decision, DOCKET NO. EAC-2013-0004 (2014)).

In response to the EAC's decision, Arizona and Kansas sought judicial review under the APA. While the states prevailed in district court, they lost on appeal (Kobach v. U.S. Election Assistance Commission (EAC), 772 F.3d (10^th Cir. 2014)). The Tenth Circuit Court of Appeals held that pursuant to ITCA, the EAC was (1) authorized by the NVRA to determine what information state officials need to assess an applicant's voting eligibility and (2) not mandated to approve state-requested changes to the Federal Form. It also held that the states failed to meet their “evidentiary burden of proving that they cannot enforce their voter qualifications because a substantial number of noncitizens have successfully registered using the Federal Form.”

The court rejected the states' arguments that (1) their Qualifications Clause powers trump Congress' Elections Clause powers and (2) the EAC's refusal to modify the Federal Form unconstitutionally precluded them from enforcing their laws intended to prevent noncitizen voting. The U.S. Supreme Court denied certiorari in 2015.

Federal Form: EAC Grants State-Specific DPOC Requests

In November 2015, the EAC hired a new executive 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 suit 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 also claimed that the decision violated the NVRA because it lacked supporting evidence that DPOC requirements were “necessary” to establish U.S. citizenship.

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

In its 2-1 opinion, the court concluded that the plaintiffs had “a substantial (perhaps overwhelming) likelihood of success on the merits” of the case, stating that it was “difficult to imagine a more clear violation” of administrative law. As the court explained, Newby failed to meet the APA's requirement that an agency “examine the relevant data and articulate a satisfactory explanation for its action including a rational connection between the facts found and the choice made.” Like the Tenth Circuit in EAC, the court rejected the contention that the EAC's 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 court, and the parties have filed cross motions for summary judgement.

Voter Registration Form with Driver's License

In a separate case, the League of Women voters and individual residents challenged a Kansas law requiring DPOC submission with the voter registration form that must accompany a driver's license application or renewal. In May 2016, the district court issued a preliminary injunction, holding that the plaintiffs made a strong showing that the NVRA preempted the state law, and ordering Kansas to register those voters who were previously prevented from registering because they did not provide DPOC at the Department of Motor Vehicles. The state appealed.

The Tenth Circuit Court of Appeals upheld the lower court's decision, holding that the state voter registration portion of a driver's license application “may require only the minimum amount of information necessary to . . . enable State election officials to assess the eligibility of the applicant and to administer voter registration and other parts of the election process.” It also held that the attestation under penalty of perjury is the “presumptive minimum amount of information necessary” for state election officials to carry out their eligibility-assessment and registration duties (Fish, et al v. Kobach, (Fish) 840 F.3d 710 (10^th Cir. 2016)).

The court explained that “as it pertains to the citizenship requirement, the presumption ordinarily can be rebutted (i.e., overcome) only by a factual showing that substantial numbers of noncitizens have successfully registered to vote under the NVRA's attestation requirement.” Since the state failed to make that showing, the court concluded that the DPOC requirement was more than the minimum amount of information necessary and, therefore, preempted. The case was remanded to the district court, which recently extended the discovery period to allow Kansas an opportunity to make the required factual showing.

BIFURCATED VOTER REGISTRATION SYSTEMS

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

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

Arizona's bifurcated system remains in effect, and we are not aware of any court challenges to it. In an October 2013 opinion, the state's attorney general concluded that:

1. individuals who apply using the Federal Form without DPOC are not “qualified electors” for state and local elections and are eligible to vote for federal offices only;

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 (Opinion No: I13-011 (R13-016)).

BACKGROUND

Stated Purposes of the NVRA

Congress enacted the NVRA, also known as the “Motor Voter Act,” to:

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

2. help government agencies implement the act's provisions in a way that enhances voter participation,

3. protect the integrity of the electoral process, and

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

Covered States Under the NVRA

According to the U.S. Department of Justice, six states are exempt from the NVRA because they have had, continuously since August 1, 1994, (1) Election Day registration (Idaho, Minnesota, New Hampshire, Wisconsin, and Wyoming) or (2) no voter registration requirements (North Dakota). The remaining 44 states and Washington D.C. are covered.

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