The Supreme Court of the United States (SCOTUS) gave its concurrence that citizenship is no longer required for voting. Monday SCOTUS declined to hear a case (No. 20-109 Schwab v. Fish) on a Kansas voting law. The law requires residents to provide proof of citizenship when registering to vote. This was despite 18 red states concurring with Kansas. The suit was a broader attack on a legal test giving judges too much power in election security.
Former Kansas secretary of state Kris Kobach championed the law. He personally defended it in court against the ACLU. The law, Secure and Fair Elections (SAFE) Act requires Kansans to produce documentary proof of citizenship when registering to vote. Federal District Judge Julie Robinson struck the SAFE Act down in 2018.
Robinson said it conflicts with a federal law requiring state officials to use “the minimum amount of information necessary” to determine voter eligibility. She also found the SAFE Act unconstitutional. It is her position the burden it places on voters outweighs the state’s interest in protecting elections.
Why should voters have to show they are citizens where they vote?
The coalition of red states seized on Robinson’s second finding to push for a bigger change in election law. Relying on precedent federal courts usually compare benefits against burdens. That is the standard when reviewing voting rules cases. The precedents are two Supreme Court cases from the 1980s and 1990s.
In a legal brief to the justices, the red states argue that approach isn’t objective. Rather it leads to inconsistent results. They urge the Court to hear the Kansas case. They want to use it to jettison the balancing test for election laws. The red states’ brief reads:
“[B]alancing the pros and cons of a given law is not a judicial analysis. And … it does not lead to uniformity in decisions or predictability in outcomes… The Court should take this opportunity to clarify that election laws are not subject to a freestanding balancing analysis.”
About 30,000 voter applications were denied under the SAFE Act. This compares with 129 noncitizens who registered or attempted to register. If you think non-citizens should not vote this case was an important loss. The number of non-citizen voters is enough to determine the outcome of many elections.
