Two-Tier Voting Systems Face Lawsuit Double Whammy

Organizations have filed state and federal lawsuits against laws in Kansas and Arizona that require voters to prove citizenship when registering to vote

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Orlin Wagner / AP

A letter from election officials lists the valid citizenship documents needed to register to vote in Kansas for the first time.

The two-tier voting systems in Kansas and Arizona received a double-punch over the last week with dual federal and state court challenges to their new voting laws.

In both states, citizens are required to show proof of citizenship before they register to vote in state elections. But as the result of a June Supreme Court ruling, the rule doesn’t apply in federal elections. This has created a “two-tier” voting system where some citizens can cast a ballot in a presidential election, yet cannot vote for their Secretary of State.

As a result the American Civil Liberties Union filed a lawsuit against Kansas, arguing the new system divides voters into “separate and unequal classes” and denies citizens the right to vote. Kansas state officials told Bloomberg News that as of October over 18,000 residents had been unable to register because of the system. The Brennan Center for Justice based at New York University in conjunction with the League of Women Voters also joined a lawsuit that argues their two-tiered voting violates federal law and undermines Congress’ authority to protect voters.

The system, the federal lawsuit claims, makes voting more difficult for residents and directly conflicts with the League of Women Voter’s mission to register as many voters as possible. “The Kansas and Arizona laws would make it harder for certain citizens to vote,” said Wendy Weiser, who directs the Brennan Center’s Democracy Program and represents the Leagues in this case in a statement. “The Supreme Court this year invalidated Arizona’s law and clearly confirmed Congress’s authority to protect the right to vote in federal elections. This lawsuit by Kansas and Arizona is a transparent attempt to undermine that authority, and it could seriously hurt voters.”

In June, the Supreme Court ruled that Arizona’s law that requires voters to confirm their citizenship before registering using the federal form is pre-empted by the National Voter Registration Act’s requirement that all states accept and use the form. Under the 1993 law, voters are required to affirm their citizenship, but they do not have to provide documentation.

In response, both states joined forces and filed a federal lawsuit in August against the U.S. Election Assistance Commission to modify the forms to add the proof-of-citizenship requirement. Their lawsuit, Kansas Secretary of State Kris Kobach told the Kansas City Star, essentially wants to prevent the same thing as the ACLU lawsuit—a two-tier system. Though the results of the two lawsuits would differ significantly.

“They’re suing to stop the very thing I’m trying to stop, which is a two-tiered system,” Kobach said. “Another day, another ACLU lawsuit.”