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Federal Judge Eric F. Melgren ruled Wednesday that the federal Election Assistance Commission must amend its voter-registration forms to require voters in Arizona and Kansas to show proof of citizenship before casting ballots. The complicated case, Kobach v. United States Election Assistance Commission, stems from a refusal by acting EAC director Alice Miller to change the federal form to include proof of citizenship, which both states require. Because all the positions but hers on the commission are vacant, Miller acted on her own to turn down a request by Arizona to have the forms changed.

The issue has a long history, beginning a decade ago when Arizonans voted for Proposition 200, a law linking voting and citizenship. As a consequence, Arizona got into a tussle with the EAC because the commission's standardized voter-registration form does not include proof or citizenship. Eventually, the matter made its way to the U.S. Supreme Court. Last year, the Court ruled in Arizona v. Inter-Tribal Council by 7-2 that Arizona's law was pre-empted by the 1993 National Voter Registration Act.

But a big loophole was left by Justice Antonin Scalia, who wrote the majority opinion. Rick Hasen of the Election Law Blog explains:

Inter-Tribal says that the federal government has plenary power to set the manner of conducting federal elections. But it also says that states have the power to set voter qualifications, and suggests that Congress cannot set a manner for voting in federal elections which deprives states of the ability to confirm that voters meet the state’s qualifications. Justice Scalia, for the majority, suggested that Arizona sue the EAC to get it to either change the federal form to require proof of citizenship for Arizona or get a court order for the EAC to do so.
The case decided by Melgren was initiated by the Kansas secretary of state, Republican Kris Kobach.

Read more analysis below the fold.

Howard Fischer reports that the decision is a setback for the Mexican American Legal Defense Fund, which has fought the Arizona law. MALDEF argues that the law harms voter-registration efforts because citizens may not be carrying or have access to proof of citizenship. The organization has vowed to appeal Judge Melgren's ruling.

But Arizona Attorney General Tom Horne notes that the ruling takes effect immediately, meaning that voter fraud will be curtailed. “So we’re going to make sure that only citizens vote in the 2014 election,” he said.

While Horne and others have claimed that such fraud is a big problem in Arizona, EAC's Miller said in her ruling against changing the federal form that state "evidence at most suggests that 196 of 2,706,223 registered voters, approximately 0.007 percent, were unlawfully registered noncitizens around the time that Proposition 200 took effect.”

In his ruling, Melgren called that irrelevant. The Constitution, he noted, gives states authority over voting qualifications and “The Arizona and Kansas legislatures have decided that a mere oath is not sufficient to effectuate their citizenship requirements and that concrete proof of citizenship is required to register to vote."

Originally posted to Meteor Blades on Thu Mar 20, 2014 at 12:21 PM PDT.

Also republished by Daily Kos.

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