Kansas Secretary of State Kris Kobach in his Topeka, Kan., office, Aug. 1, 2013. 
Photo by John Hanna/AP

Federal agency helps red states make voter registration harder

Updated

The director of the federal agency that helps states run elections is under fire for abruptly reversing course and siding with three Republican-led states in their efforts to make vote registration much more difficult.

The controversy involves questions of federal policymaking authority that may sound arcane. But at stake are the rights of perhaps thousands of would-be voters as the 2016 elections approach — as well as allegations of improper collusion at the federal level.

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On Friday, Brian Newby, the new executive director of the Election Assistance Commission (EAC), wrote in letters to Kansas, Georgia and Alabama officials that the agency had changed the state-specific instructions given to voters in those states to accompany the federal voter registration form that the EAC administers. The new instructions say that would-be voters must present proof of citizenship when they register. 

Kansas’ Republican Secretary of State, Kris Kobach — an ally of Newby, a former Kansas county election administrator — has for years been pressing the EAC to green-light that change. In 2011, Kobach, a former GOP operative and zealous backer of strict voting and immigration laws, helped pass a state law that required proof of citizenship from those registering to vote. But the EAC had twice rejected Kobach’s request to change the instructions given to Kansas voters on the federal form, saying the change would violate federal voting law, which aims to make registration as easy as possible. In late 2014, a federal court likewise ruled against Kobach.

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As such, Newby’s move Friday amounted to a sudden, unilateral surrender by the agency on an issue that could have major implications for access to the ballot in Kansas, Georgia, Alabama, and Arizona, which all have proof-of-citizenship laws. Now that it’s installed, the change can only be undone with the approval of all three commissioners —which appears unlikely — or through legal action.

Newby’s move sparked instant criticism. In a statement posted online Tuesday, the panel’s lone Democratic commissioner, Vice Chair Thomas Hicks, wrote that Newby had acted “unilaterally,” and that his decision “contradicts policy and precedent established by the Commission.” Hicks noted that a 2015 EAC statement makes clear that the executive director lacks the authority to set policy, which must be done by the commissioners. Hicks said any change to the federal voter registration form would need to be voted on by the commissioners after a public comment period, neither of which occurred in this case.

“This is a shocking departure from two previous rejections by the EAC of requests to change the federal form along these lines, with no explanation, and, what’s worse, with no opportunity for public notice and comment,” said Dale Ho, the director of the ACLU’s voting rights program, which is suing Kobach over the proof-of-citizenship requirement, calling it “troubling on a number of levels.”

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The exact impact of Newby’s decision isn’t yet clear, but for now it gives a major boost to Kobach and the other Republican secretaries of state, who want to add proof-of-citizenship language to their states’ instructions. If it stands, it could allow those states to require proof of citizenship for anyone wanting to register to vote in any election. It could also make it easier for Kobach to throw out around 30,000 voter registration forms already submitted by people who didn’t provide the necessary documents, as he has been seeking to do. Kobach has already seized on the change to argue in a court filing this week that a lawsuit brought by voting rights groups related to the proof-of-citizenship requirement should be thrown out immediately.

In an interview with MSNBC, Newby conceded that he lacks the authority to change EAC policy. But he argued that changing the state-specific instructions that accompany the federal voter registration form, unlike changing the form itself, constituted an administrative matter, rather than a policy change— even though the agency had twice rejected Kansas’ requests to change the instructions. In fact, Newby said, he believes he’s required to change the instructions if a state asks him to.

“If a state requests that we modify the state-specific instructions based on their state law, yes, I believe that my role is to put those [changes] in our state-specific instructions,” Newby said.

If there’s a meaningful distinction between the federal form and the instructions that accompany the federal form, it was lost even on Kobach. In his court filing this week seeking to have the lawsuit against him dismissed, he referred to Newby’s decision thus: “On January 29, 2015 (sic), the EAC granted Kansas’s request to modify the Federal Form.” 

William Lawrence, a Kansas lawyer who is challenging Kobach’s effort to remove the roughly 30,000 would-be voters who didn’t provide proof of citizenship, said the distinction Newby is seeking to draw doesn’t hold water.
 
“Mr. Newby’s unilateral action is changing legally binding language that is part of the form itself,” Lawrence wrote in an email to MSNBC. “That cannot be done by a secret handshake between him and Mr. Kobach.”
 
Adding to the concern is that Newby was until last year the top election administrator for Kansas’ Johnson County. In that capacity, he appeared to enjoy a friendly relationship with Kobach, who re-appointed him to the post in August 2014, calling him “an extraordinary election commissioner.” On his personal blog about election administration, Newby wrote that those and other compliments from Kobach, offered at Newby’s swearing-in ceremony, “made me kind of misty.” Last May, Newby praised Kobach as someone who “gets his fingernails dirty in the nuts and bolts of elections operations as though he truly is one of us,” adding that he was “extremely proud to be affiliated” with Kobach, as well as with Kobach’s two predecessors as secretary of state. In 2012, Newby wrote that Kobach has been “that steady hand that Kansans expect of their secretary of state.”

 
Lawrence also alleges that Kobach may have known two weeks ago that the EAC had decided to make the change, suggesting improper collusion between Kobach and Newby. Lawrence said that at an appearance before a Kansas Senate committee January 21, Kobach was asked about the voter registration form controversy, and twice said the federal form would be changed before the next elections. Lawrence said those comments suggest Newby may have improperly communicated with Kobach on the issue without the knowledge of the EAC’s commissioners.
 
“Given Mr. Kobach’s knowledge that this change was coming beforehand and his close relationship with Mr. Newby, this has the appearance of a closed door deal not done through proper channels.”
 
Newby admitted to MSNBC he’d been in contact with Kobach on the issue, as well as with the secretaries of state of Alabama and Georgia. He said there was nothing improper about doing so, or about not including the the EAC’s commissioners in his conversations with state officials. 
 
“It wouldn’t have been proper to include the commissioners in any of the discussions I had with the secretaries of state,” Newby said. “It was really my jurisdiction, my process.”
 
Newby said Kobach did not have advance knowledge of the final decision on the issue. And Newby denied that the chummy relationship between the two men raised questions about his impartiality.
 
“Just because I may think that somebody is doing a good job doesn’t mean that I would have a personal conflict,” Newby said.
 
 A spokesman for Kobach did not respond to an inquiry from MSNBC.

Kansas and Kris Kobach

Federal agency helps red states make voter registration harder

Updated