States should still check voter citizenship after Kansas ruling

States should still check voter citizenship after Kansas ruling
© Greg Nash

States should feel emboldened to seek out means to ensure only U.S. citizens are on their rolls even after a federal district court judge struck down a Kansas law that required individuals to provide proof of citizenship before they registered to vote. The opinion was heralded by the ACLU as a “stinging rebuke” of the documentary proof of citizenship law passed by the Kansas legislature in 2011. The group even charged that the basis for enacting such policy was “based on a xenophobic lie” that noncitizens are engaging in the voting process in any significant way.

A sober reading of the ruling paints a different picture. On the one hand, denizens of the organized left may enjoy a brief period of gloating, but their victory is Pyrrhic at best. While it is troubling the court rejected a sound and logical law aimed at ensuring that those who vote are eligible to do so, the holding is quite limited and should not deter other states from combatting the serious problem of noncitizen voting.

The court acknowledged Kansas has a legitimate interest in “preventing noncitizen registration, maintaining accurate voter rolls of only qualified U.S. citizens, and maintaining confidence in the electoral process.” However, the court also found that Kansas did not show that those interests were “strong enough to outweigh the tangible and quantifiable burden” that the state law put on applicants.

The court addressed several “alternatives” to a documentary proof of citizenship law that could serve the legitimate interest of preventing noncitizen registration and voting. In fact, the court said such approaches would allow Kansas and others to better enforce the citizenship requirement without complicating the registration process.

Many of these “acceptable alternative approaches” are among the strategies that several experts compiled into a guide for state and local governments. The court referenced the emerging practice of comparing statewide voter lists to other official databases like drivers license customers and the federal Systematic Alien Verification for Entitlements Program. Expanding the practice of sharing data from jury clerks with written claims of noncitizenship to election officials also receives mention.

The court said it is not clear that Kansas “leveraged information from other state agencies to access the information needed” in order “to confirm citizenship status of voter registration applicants.” The court found that “such an approach would be less burdensome” than the documentary proof of citizenship law. States should ensure that they are using any information they have in order to verify citizenship.

In sum, state governments already have the tools and data they need to verify citizenship, but they may lack the statutory requirement to do so from their state legislatures. No county clerk will independently enact such an effort on their own. This is where state lawmakers must step up. The court found that the Division of Motor Vehicles had been “offering voter registration to all applicants as a matter of course, even if the clerk knew that the applicant was a noncitizen.”

This problem is in no way unique to Kansas. In Pennsylvania last year, election officials admitted that all drivers license customers were treated to voter registration screenings, even when they presented foreign passports and green cards. Worse yet, officials said they knew of this procedural flaw since the 1990s. States should work toward ensuring this does not happen, not only for the integrity of the voter rolls, but also because registering to vote may carry serious consequences for noncitizens, including effects on future immigration status.

Kansas and other states can benefit from a new example in Arizona, where an applicant for the voter roll will be compared against the local DMV database to pull citizenship documents. A match will designate the registrant a “full ballot voter” in local, state, and federal elections. If such information is not available, registrants will be notified of their limitation to only cast ballots in federal races until eligibility is verified.

The court emphasized in its ruling that the Kansas secretary of state has the authority to prosecute noncitizens for registering to vote. Such prosecutions will deter future unlawful registration. State and local officials should take note of the myriad ways to prevent noncitizen registration that were just given the stamp of approval by the court.

Kaylan Phillips is chief litigation counsel for the Public Interest Legal Foundation, a nonprofit law firm focused on protecting election integrity. She serves as counsel in League of Women Voters v. Election Assistance Commission, a similar case involving proof of citizenship requirements.