Can States Require Proof of Citizenship for Voting?

In 2011, Kansas passed the SAFE Act — Safe and Fair Elections — which requires voter ID, proof of citizenship and signature verification. In other words, it’s designed to make sure that all votes cast in Kansas are cast legally by the person identified as the voter. The law was to go into effect January 1, 2013. But the Obama administration stood in the way.


At issue are the forms states use to register voters for federal elections. Kansas and Arizona require proof of citizenship, while the federal government’s form — incredibly — does not. The federal government attempted to force Kansas to use its federal voter registration form. A lawsuit ensued, and Kansas (along with Arizona) won in federal court last month. The outcome affirms the right of states to set requirements for voting within their territory. The Supreme Court upheld an Indiana law requiring voter ID in 2008.

Critics claim that the citizenship requirement is discriminatory, but Senior Legal Fellow of the Heritage Foundation, Hans von Spakovsky, who studies the impact of election integrity laws on elections and called that charge “silly,” noting that it’s a felony for non-citizens to vote in US federal elections. Therefore, verifying citizenship is just a matter of enforcing existing election law.

Von Spakovsky made his comments Tuesday evening on a conference call organized by True the Vote. The Houston, Texas-based organization is a grass-roots group dedicated to improving the security and integrity of elections across the United States. Its president and founder, Catherine Engelbrecht, moderated the conference call.

Von Spakovsky noted that the court found that the federal government acted well outside its legal powers, when it fought against requiring proof of citizenship and tried to force Kansas to change its own voter registration forms.


Should other states adopt citizenship requirements? Kansas Secretary of State Kris Kobach, architect of the SAFE Act, says that the federal ruling certainly opens the door. Kobach said states that currently have photo ID laws are likely to follow and require citizenship. There are currently about 11 states that require voters produce photo ID when voting. Kobach also noted that court ruled that the federal government simply lacks the power to force states to use the federal voter registration form, despite its assertion of that power against Kansas’ SAFE Act. The states, said Kobach, have the power to both set and enforce their voter registration standards, within the bounds of federal requirements.

The judge ruled that “The [National Voting Rights Act] does not empower the federal government to second-guess the states” on voter registration, Kobach said. The Kansas law spells out proof of citizenship, and even allows voters to supply their proof later if they fail to bring it with them when they register to vote.

Critics also charge that requiring voter ID “suppresses” votes. Von Spakovsky shot that down. “I went into states that have passed photo ID requirements and took at look at what happened with the turnout” after those laws went into effect. He noted that Tennessee has passed photo ID, and in 2012, the first election held with photo ID in place, the black vote surged. Spakovsky also brought up Texas, which is currently under federal lawsuit over its voter ID law. He found that in Texas’ 2013 constitutional amendment election, turnout went up across the board compared to 2011’s constitutional amendment election, and dramatically in predominantly minority areas. His finding lines up with my own study of voter ID’s impact in the Lone Star State. Yet critics continue to claim, against hard evidence, that voter ID suppresses votes.


“It’s almost as if the facts don’t matter” to the critics, von Spakovsky quipped.

Kobach noted that he has been subjected to protests, including a group of illegal alien appearing at his family home to oppose the SAFE Act, but that has not deterred him and will not.

“If we can’t have fair and free elections, how can we have any faith in the system?” he asked rhetorically. He noted that despite claims by critics that election fraud does not exist, as Kansas secretary of state he has seen cases in which illegal aliens attempted to register to vote in the state, either because they applied or someone filled out a registration form on their behalf. He also noted a Kansas City, MO case in 2010 in which Somali nationals were seen lining up and voting, under coaching from a leader, for a specific candidate in a Democratic primary for a safe Democratic seat.

“That was a case of an election being stolen,” Kobach said. He also noted several additional cases, in several states, in which non-citizens were registered, coached and used to swing local elections. “They may not even know that they are breaking the law,” Kobach said, noting that those who register them and coach are aware that what they are doing is illegal. “When I hear stories like that, I know I’m doing the right thing,” he concluded.


“It’s fundamental to the operation of our republic” that our election integrity is maintained and improved, added True the Vote president Catherine Engelbrecht.





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