Judicial Watch, AEF File Amici Brief with Supreme Court Supporting Arizona, Kansas Efforts to Require Proof of Citizenship on Voter Registration Forms

‘Illegal voting at any level can change the outcome of elections. And there is no acceptable amount of fraud.’

(Washington, DC) – Judicial Watch announced today that it has joined with the Allied Educational Foundation (AEF) to file an amici curiae brief with the United States Supreme Court in support of Arizona’s and Kansas’ efforts to add proof-of-citizenship requirements to a federal voter registration form (Kris W. Kobach, et al., v. U. S. Election Assistance Commission, et al., (No. 14-1164)). In their amici brief Judicial Watch and AEF argue that if the lower court ruling is allowed to stand, it will “undermine voter confidence in the integrity of elections:”

If states cannot verify the citizenship of those registering to vote, citizens may have their votes cancelled out by unlawful ballots cast in the names of noncitizens. The mere threat of this outcome will undermine voters’ confidence that elections are being conducted fairly and honestly, discouraging those voters from voting at all and thereby burdening their right to vote. As this Court has explained, public confidence in the integrity of elections encourages citizen participation in the democratic process…Conversely, a lack of faith in electoral integrity undermines confidence in the system and discourages citizen participation in democracy.

In August 2013, Kansas and Arizona filed a complaint against the Election Assistance Commission (EAC) asking the U.S. District Court for the District of Kansas to force the agency to require proof of citizenship in the state-specific instructions on the National Mail Voter Registration Form (the Federal Form). The District Court ruled in favor of the states, but in November 2014, the Denver-based U.S. Court of Appeals for the Tenth Circuit ruled that the Obama administration could prevent states from enforcing their state laws requiring voter registration applicants to provide evidence of citizenship. In March, the secretaries of state of Arizona and Kansas filed a petition of writ of certiorari with the Supreme Court asking it to review and overturn the Tenth Circuit ruling.

Judicial Watch and AEF argue that disallowing Kansas and Arizona from enforcing citizenship requirement for voter registration would undermine the U.S. Constitution, which recognizes the freedom of states to set qualifications of voters (U.S. Const., Art. 1, sec. 2, cl. 1). The Supreme Court previouslyruled (Arizona v. Inter Tribal Council of Arizona) that the “the Elections Clause empowers Congress to regulate how federal elections are held, but not who may vote in them … Since the power to establish voting requirements is of little value without the power to enforce those requirements, Arizona is correct that it would raise serious constitutional doubts if a federal statute precluded a State from obtaining the information necessary to enforce its voter qualifications.”

Judicial Watch and AEF also point to U.S. Census Bureau data, which indicates that seven percent of the U.S. resident population lacks citizenship (approximately 22 million lawful and unlawfully present aliens). State efforts to ensure only eligible citizens vote, therefore, are presented with a real voter fraud problem. A study published in 2014 concluded that about 25 percent of U.S. noncitizens were registered to vote in 2010, and that 6.4 percent had voted in 2008 and 2.2 percent had voted in 2010. These illegal non-citizens voters, the study suggested, were decisive in President Obama’s 2008 election victory and in ensuring the Democratic super-majority could pass Obamacare into law. The researchers noted that many legal and illegal aliens had sufficient voter ID to vote in states that require some type of voter identification, which suggests that voter ID laws alone may not prevent non-citizens from voting.

The amici brief emphasizes that efforts to ensure that only citizens vote in federal elections are essential to combatting fraud and reassuring Americans that elections are fair:

The Tenth Circuit’s decision threatens to diminish Americans’ confidence in their own elections. The harm that results will be significant regardless of the frequency with which voter fraud occurs. A bipartisan panel convened to examine the existence and impact of voter fraud, the Carter-Baker Commission, had this to say [in 2005] about the frequency of voter fraud relative to its “significance”:

While the Commission is divided on the magnitude of voter fraud — with some believing the problem is widespread and others believing that it is minor — there is no doubt that it occurs. The problem, however, is not the magnitude of the fraud. In close or disputed elections, and there are many, a small amount of fraud could make the margin of difference. And second, the perception of possible fraud contributes to low confidence in the system.

Such “close elections” occur all the time. Ohio Secretary of State Jon Husted released remarkable statistics showing that, in 2013, 35 local races and 8 local ballot issues were decided in his state either by one vote, or by the toss of a coin following an electoral tie. Illegal voting at any level can change the outcome of elections. And there is no acceptable amount of fraud.

In December 2012, Judicial Watch filed a Supreme Court amicus curiae brief in support of Arizona’s proof of citizenship voter registration law. Then, in January 2014, Judicial Watch supported Arizona’s and Kansas’ follow-up to that litigation in their efforts to gain approval from the Obama administration’s EAC to change the “federal” voter registration form to include a proof-of-citizenship requirement. JW and AEF then supported the states’ challenge to the EAC with an amicus brief before the Tenth Circuit in July, 2014. The Obama Justice Department pressured states to register greater numbers of voters on public assistance, while ignoring federal law requiring states to clean up voter registration lists. The Obama Justice Department has also opposed voter ID laws and other election integrity measures.

“As so often has been the case over the past six and a half years, the states are once again being forced to fight the Obama administration in order to insure the integrity of the electoral process,” said Judicial Watch President Tom Fitton. “The Obama administration opposes citizenship verification and voter ID, one can conclude, because it wants non-citizens to vote in elections. The Supreme Court should step in, follow the Constitution, and recognize the constitutional power of the states to secure elections by ensuring that only citizens can vote. The Obama administration stands in the courthouse door opposed to clean and fair elections for American citizens.”

The Allied Educational Foundation is a charitable and educational foundation dedicated to improving the quality of life through education. In furtherance of that goal, the Foundation has engaged in a number of projects which include, but are not limited to, educational and health conferences domestically and abroad. AEF has frequently partnered with Judicial Watch to fight government and judicial corruption.