Even the federal government says the director of a federal election agency erred when he allowed a group of red states to require proof of citizenship for those looking to vote.
In a court filing Monday, the U.S. Department of Justice wrote that it supported a motion by voting groups to immediately halt the controversial move made last month by Brian Newby, the executive director of the Election Assistance Commission (EAC).
DoJ lawyers wrote that because the proof of citizenship requirement violates federal voting law, Newby’s decision was “not consistent with the statute” and “contrary to governing law.” The filing means that Newby’s position that the change was appropriate is in effect being disowned by his own legal team.
Despite the DoJ's stance, at a hearing Monday afternoon, U.S. District Court Judge Richard Leon declined to grant the voting rights groups' request for a temporary restraining order against the move. Leon indicated that he wanted to wait until the full facts of the case are presented. A hearing is scheduled for March 9.
In late January, Newby informed Kansas, Georgia and Alabama officials that he had approved their request to change the state-specific instructions that accompany the federal voter registration form, adding a requirement that applicants present proof of citizenship. All three states have passed proof-of-citizenship laws for voter registration. Newby’s surprising move set off an uproar among voting rights groups, who noted that the EAC had rejected past requests by Kansas to change the form. The agency had said that the change violates the National Voter Registration Law, which aims to make voting as easy as possible. A federal court upheld that view in 2014.
Also in the filing, Newby said in a sworn deposition that he decided to change the form after receiving a list of non-citizens who had "recently" registered to vote in Kansas. The list was sent by Kansas Secretary of State Kris Kobach, who was requesting the change. Newby said in the deposition that after receiving the list from Kobach, "I began developing a point of view that previous decisions by the EAC might have been wrong."
In fact, the list, from Kansas' Sedgwick County, showed that seven non-citizens registered in the decade before the state's proof of citizenship law went into effect in 2013. And it showed that 11 non-citizens had been stopped from registering since then, though it's unclear whether the law was responsible. Meanwhile, voting rights groups have said over 40,000 registrations have been thrown out or suspended because of the law.
Kobach said in October that over 30 non-citizens have tried to register to vote in Kansas. Asked at that time whether any of them voted, a spokesman for Kobach did not respond.
Kobach formally asked Friday to intervene in the suit on Newby's behalf. As a county election official in Kansas, Newby had a cozy relationship with Kobach, MSNBC has reported.
Voting rights groups claimed in their suit that Newby had overstepped his authority in making the change to the federal form, which they characterize as a policy change. Though the move will make it harder for many tens of thousands of people to vote, Newby has said it was an administrative change he’s empowered to make.
And he has said he believes he’s required to approve any request by a state to change the instructions that accompany the federal form. In their filing, the DoJ lawyers wrote that, in fact, the EAC must determine whether such requests comply with the NVRA.
In the sworn deposition, Newby also suggested that EAC staff were in part to blame for the controversy. He said that as he sought to determine whether to approve the request, some staff were “unhelpful” and one was “disengaged.”
And he said past EAC decisions to deny the request “appeared to be driven by emotion” rather than reason.
Separately, the ACLU filed a lawsuit against Kobach last week, claiming that Kansas' proof of citizenship requirement for those registering to vote at the DMV violates the NVRA.