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Despite news percolating throughout the country about non-citizens registering to vote under loose Motor-Voter practices, the courts are refusing to allow states to verify citizenship as a condition for registering to vote. Yesterday, the Tenth Circuit Court of Appeals upheld a district court’s injunction against a Kansas law requiring those registering with federal Motor-Voter forms to show proof of citizenship. The original injunction forced the state to register 20,000 individuals who failed to show proof of citizenship.

Now, that number could rise to 50,000.

Once again, we have a Republican judge writing a radical decision flipping state powers on its head and bastardizing a statute.

In September, the D.C. Circuit Court of Appeals blocked the arrangement that Kansas and several other states worked out with U.S. Election Assistance Commission (EAC) — the agency responsible for drafting the federal voter registration forms — to accommodate those states and provide space on the federal form to require proof of citizenship. Yesterday, the Tenth Circuit, in a unanimous decision, upheld an injunction against the state law itself, which requires proof of citizenship in order to register.

The three-judge panel, which included a Republican-appointee (surprise surprise!), used the typical tactics of the judicial tyrants to crush the states. They asserted that by complimenting federal law with the most basic integrity measures needed to fulfill the law’s mandate for clean rolls, the state was in fact violating federal law. This is similar to the shtick the court uses against states that wish to compliment federal immigration law. Courts have ruled that states cannot do anything to protect the sovereignty and the franchise of their citizens unless it is explicitly provided for in the most literal terms by the federal statutes.

They have it exactly backwards.

States have full power over protecting elections, especially in light of the existential threat of non-citizens voting, unless the statute explicitly bars them from doing so.

This decision doesn’t even give the veneer of respect for constitutional powers of states and basic statutory construction. “This opinion by the Tenth Circuit is divorced from the facts and the law and is just another example of federal courts interfering with the constitutional authority of states to administer their elections and determine the qualifications and eligibility of their voters,” said Hans von Spakovsky, a Senior Legal Fellow at The Heritage Foundation. “This deplorable decision ignored the overwhelming evidence that noncitizens are illegally registering and voting in our elections and gives them a green light to continue their illicit behavior, which steals votes from eligible American voters.”

Judge Jerome Holmes, the George W. Bush appointee who wrote the opinion, asserted that because Section 5 of the Motor Voter law provides that states only require “the minimum amount of information necessary” on the registration form in order to assess eligibility, by asking for proof of citizenship Kansas had violated the statute. In Judge Holmes’s estimation, proof of citizenship is some gratuitous and burdensome requirement. After all, you could simply work on the honor system and just ask them nicely if they are U.S. citizens. Evidently, Judge Holmes and his two colleagues, along with the district judge and the D.C. Circuit, believe that the minimum requirement to assess any eligibility in life dictates that the service should be provided without any verification. Trust, and don’t verify!

While conceding that the state had an interest in ensuring non-citizens don’t vote, Judge Holmes asserted that states must provide “a simple means of registering to vote in federal elections,” and evidently, requiring proof of citizenship is not “simple.” He warned that the federal law was “designed to increase the number of eligible voters who register and vote.”

Well, yes, but not for non-citizens!

Section 8 of the law requires states to “make a reasonable effort to remove the names of ineligible voters from the official lists of eligible voters” [52 U.S.C. § 20507(a)(4)(B)]. If states can’t ask for photo ID when voting to weed out fraud, proof of citizenship up front when registering, or removal of names of dead voters without going through an endless, cumbersome process fraught with lawsuits – how can a state maintain clean rolls? 

This is part of a growing trend we warned about with judges molly-coddling the American people, essentially requiring states to hold their hands all the way to the polls, asserting that anything short of what Democrats want is tantamount to suppressing the vote.

We are strangers in our own land when states can’t protect against voter fraud. As we noted earlier this month, a 2014 study concluded that up to 6.4 percent of all non-citizens participated in the 2008 elections and up to 14.7 percent voted that year, likely changing the outcome of some Senate races. In 2012, a Pew analysis warned that 1 in 8 registrations were no longer valid or have significant inaccuracies.

Remember, non-citizen registration is the worst form of voter fraud because the requirement for photo ID doesn’t even help. Even in the states where the courts haven’t blocked photo ID (yes, that is a burden too!), there is now no way to protect against non-citizens voting. They already get their driver’s licenses and are handed voter registration forms. As long as they are dishonest and simply check the box saying they are citizens, they can walk into a polling place and show ID demonstrating they are the person they claim to be. There is no way to verify citizenship once they are registered without showing a birth certificate or naturalization papers.    

Once again, we have a Republican judge writing a radical decision flipping state powers on its head and bastardizing a statute.

Repeat after me: THE FEDERAL JUDICIARY IS IRREMEDIABLY BROKEN and MUST BE REFORMED WHOLESALE. Otherwise, even when we have competitive candidates at a national level, states will have no power to prevent non-citizens from determining the outcome.    



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