On February 5, U.S. District Court Judge Eric Melgren signed an order restricting the scope of the Kansas-Arizona challenge to the Election Assistance Commission’s decision not to allow those two states to amend the federal voter registration postcard form. The two states wanted a trial to submit evidence that the federal form doesn’t offer enough protection against aliens registering to vote. The federal form requires applicants to sign under penalty of perjury that they are citizens, but the two states want to change the form to require the applicant to attach proof.
The Election Assistance Commission had already held a hearing last year at which both sides presented evidence. The EAC record on this matter consists of 1,912 pages. After the EAC’s hearing, the EAC issued a 46-page determination that there is no need to amend the form. The judge ruled that, therefore, there is no need for a trial on this issue in his court. Instead, the District Court will simply rule on whether the EAC has the authority to make the decision it did. Kansas and Arizona will now probably argue that the EAC’s determination was “arbitrary, capricious, or an abuse of discretion”, and the two states will also probably argue that the EAC is required to honor the request of the states. The two states may also argue that the EAC had no authority to act because, although it has a full-time professional staff, it has no sitting commissioners.
The case is Kobach v U.S. Election Assistance Commission, 5:13cv-4095, in U.S. District Court in Kansas.