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League of Women Voters v. Harrington

The Brennan Center, along with co-counsel Stroock & Stroock & Lavan LLP and Kirkland & Ellis LLP, represents the League of Women Voters of the United States, along with its Alabama, Georgia, and Kansas state Leagues, in a lawsuit opposing U.S. Election Assistance Commission Executive Director Brian D. Newby’s action to allow three states to require documentary proof of citizenship on the federal voter registration form.

Last Updated: September 21, 2021
Published: September 7, 2017

The Bren­nan Center, along with co-coun­sel Stroock & Stroock & Lavan LLP and Kirk­land & Ellis LLP, repres­ents the League of Women Voters of the United States, along with its Alabama, Geor­gia, and Kansas state Leagues, in a lawsuit oppos­ing U.S. Elec­tion Assist­ance Commis­sion Exec­ut­ive Director Brian D. Newby’s action to allow three states to require docu­ment­ary proof of citizen­ship on the federal voter regis­tra­tion form.

In 2013, the Supreme Court ruled that Arizona could not require docu­ment­ary proof of citizen­ship on the federal regis­tra­tion form without EAC approval. Kansas imple­men­ted a law similar to Arizon­a’s the same year, and both states put proof of citizen­ship require­ments into effect for voters using their state forms. Subsequently, the EAC and a federal court ruled it invalid for the federal form. Alabama and Geor­gia, which passed similar provi­sions in 2011 and 2009, respect­ively, had not imple­men­ted their laws. Research shows 7 percent of voters do not have docu­ment­ary proof of citizen­ship, and tens of thou­sands of Kansans have been blocked from regis­ter­ing to vote in the state.

On Janu­ary 29, 2016, Newby sent letters to the secret­ar­ies of state of Alabama, Geor­gia, and Kansas stat­ing, without further explan­a­tion, that he would allow the three states to require citizen­ship docu­ments for applic­ants using the federal regis­tra­tion form. If the docu­ments, such as birth certi­fic­ates or pass­ports, are not provided, Amer­ic­ans will be denied the funda­mental right to vote. The federal form is designed to guar­an­tee a “simple means of regis­ter­ing to vote,” and already requires applic­ants to swear that they are U.S. citizens under penalty of perjury.

Docu­ment­ary proof of citizen­ship require­ments under­mine the groups’ efforts to increase civic parti­cip­a­tion and make it more diffi­cult for indi­vidu­als to vote. The League, one of the longest stand­ing voter regis­tra­tion organ­iz­a­tions in the nation, argues that docu­ment­ary proof of citizen­ship require­ments harm its nonpar­tisan voter regis­tra­tion efforts, under­min­ing its core mission of promot­ing voter parti­cip­a­tion, and that Exec­ut­ive Director Newby should not have taken action restrict­ing the right to register to vote in federal elec­tions.

Nearly identical requests from Arizona and Kansas have already been rejec­ted by the EAC multiple times. In June 2015, the U.S. Supreme Court turned down a peti­tion from Arizona and Kansas to hear Kobach v. United States Elec­tion Assist­ance Commis­sion, thereby letting stand a 10th Circuit ruling that the states may not force applic­ants using the federal voter regis­tra­tion form to show docu­ments.

The exec­ut­ive director did not have author­ity to allow the three states to enforce docu­ment­ary proof of citizen­ship require­ments on the federal form, and doing so viol­ated both EAC policy and federal law. The suit is brought in response to Exec­ut­ive Director Newby’s sudden and unex­plained decision to allow three states to require applic­ants using the federal regis­tra­tion form to show docu­ments prov­ing their citizen­ship. The Bren­nan Center is joined in its complaint by other coun­sel and groups. The Lawyers’ Commit­tee for Civil Rights Under Law, Amer­ican Civil Liber­ties Union, and pro bono coun­sel Step­toe & John­son LLP repres­ent the Geor­gia State Confer­ence of the NAACP and the Geor­gia Coali­tion for the People’s Agenda. The Lawyers’ Commit­tee and ACLU also repres­ent Marvin and JoAnn Brown. Project Vote joins in the lawsuit repres­ent­ing itself and with pro bono coun­sel Arnold & Porter LLP.

On Febru­ary 12, 2016, the Bren­nan Center along with co-coun­sel filed suit against Exec­ut­ive Director Newby’s wrong­ful action, and on Febru­ary 17, filed motions for a tempor­ary restrain­ing order and prelim­in­ary injunc­tion to prevent the Exec­ut­ive Director and the EAC from enfor­cing the decision grant­ing state requests to require docu­ment­ary proof of citizen­ship on the federal voter regis­tra­tion form.

The parties met in court on Febru­ary 22, 2016 for a hear­ing on the Plaintiffs’ motion for a tempor­ary restrain­ing order, and Judge Richard Leon denied the Plaintiffs’ motion on Febru­ary 23. On March 9, the parties again met in court to argue the Plaintiffs’ motion for a prelim­in­ary injunc­tion. On June 29, Judge Leon denied the Plaintiffs’ prelim­in­ary injunc­tion. The Bren­nan Center along with co-coun­sel filed a brief appeal­ing that order in the D.C. Circuit on July 18. 

On Septem­ber 9, 2016, the D.C. Circuit prelim­in­ar­ily enjoined the EAC from chan­ging the federal voter regis­tra­tion form to allow Kansas, Alabama, and Geor­gia to require docu­ment­ary proof of citizen­ship. That means docu­ment­ary proof of citizen­ship is not on the federal form. The case is proceed­ing in the district court. 

On Febru­ary 24, 2017, the district court remanded the decision to the EAC. Judge Leon instruc­ted the Commis­sion to determ­ine whether Exec­ut­ive Director Newby had author­ity to allow the three states to require proof of citizen­ship on the federal form. 

On June 1, 2017, the EAC announced in a federal court filing that they were split along partisan lines over whether the panel’s exec­ut­ive director acted within his author­ity last year when grant­ing the requests at issue in the case. The disagree­ment means that the Septem­ber 2016 injunc­tion against the burden­some regis­tra­tion require­ments still stands.

On Septem­ber 16, 2021, the district court gran­ted Plaintiffs’ request for summary judg­ment, find­ing that Exec­ut­ive Director Newby’s decision allow­ing the three states to amend the federal voter regis­tra­tion form to require docu­ment­ary proof of citizen­ship from regis­trants in those states viol­ated the federal Admin­is­trat­ive Proced­ures Act (APA). The judge ruled that Newby’s actions, on behalf of the EAC, viol­ated the APA because he did not make a determ­in­a­tion that the proposed changes were “neces­sary” to enable the states to assess voter eligib­il­ity before approv­ing the changes, as required by the NVRA.

Though these regis­tra­tion require­ments have not been in place due to the prelim­in­ary injunc­tions issued in 2016, the district court’s final decision means that no state can require docu­ment­ary proof of citizen­ship as part of the federal voter regis­tra­tion form going forward unless they make a new request to the EAC, and the EAC makes a new find­ing that the require­ment is neces­sary to give effect to the state’s eligib­il­ity require­ments.

District Court Docu­ments

Appeals Court Docu­ments