1

 U. S. ELECTION ASSISTANCE COMMISSION

 1335 East West Highway, Suite 4300

 Silver Spring, MD 20910

MEMORANDUM OF DECISION CONCERNING STATE REQUESTS TO

INCLUDE ADDITIONAL PROOF-OF-CITIZENSHIP INSTRUCTIONS

ON THE NATIONAL MAIL VOTER REGISTRATION FORM

(DOCKET NO. EAC-2013-0004)

The United States Election Assistance Commission (hereinafter “EAC” or

“Commission”) issues the following decision with respect to the requests of Arizona, Georgia, 

and Kansas (hereinafter, collectively, “States”) to modify the state-specific instructions on the 

National Mail Voter Registration Form (“Federal Form”). Specifically, the States request that 

the EAC include in the applicable state-specific instructions on the Federal Form a requirement 

that, as a precondition to registering to vote in federal elections in those states, applicants must 

provide additional proof of their United States citizenship beyond that currently required by the 

Federal Form. For the reasons set forth herein, we deny the States’ requests.

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I. INTRODUCTION

A. State Requests

1. Arizona

In 2004, Arizona voters approved ballot Proposition 200 amending Arizona’s election 

laws, as relevant here, by requiring voter registration applicants to furnish proof of U.S. 

citizenship beyond the attestation requirement of the Federal Form. Ariz. Rev. Stat. Ann. § 16-

 1 As explained below, this decision follows a court order in Kobach v. EAC, No. 5:13-cv-4095 (D. Kan. 

Dec. 13, 2013) remanding the matter to the agency and a subsequent request for public comment. The undersigned 

Acting Executive Director has determined that the authority exists to act on the requests and therefore issues this 

decision on behalf of the agency.
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166(F). According to the state law, a county recorder must “reject any application for 

registration that is not accompanied by satisfactory evidence of United States citizenship.” Id.

On March 6, 2006, the Commission, acting through its Executive Director, denied 

Arizona’s original 2005 request to include additional proof of citizenship instructions on the 

Federal Form, finding, inter alia, that the form already required applicants to attest to their 

citizenship under penalty of perjury and to complete a mandatory checkbox indicating that they

are citizens of the United States. EAC000002-04. Further, the Commission observed that 

Congress itself had found that a documentary proof-of-citizenship requirement was “not 

necessary or consistent with the purposes of” the National Voter Registration Act (“NVRA”). 

Id.

In July 2006, after receiving several letters of protest from Arizona’s Secretary of State, 

the EAC’s then-chairman requested that the EAC commissioners accommodate the State by 

reconsidering the agency’s final decision and granting Arizona’s request. EAC000007-08, 

EAC00000011, EAC00000013-14. On July 11, 2006, the EAC commissioners denied the 

chairman’s motion for an accommodation by a tie vote of 2-2. EAC000010.

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Subsequently, Arizona refused to register Federal Form applicants who did not provide 

the documentation required by Proposition 200. Private parties filed suit against Arizona, 

challenging Arizona’s compliance with the NVRA. In June 2013, the Supreme Court ruled that 

the NVRA preempts inconsistent state law and states must accept and use the Federal Form to 

register voters for federal elections without requiring any additional information not requested on 

the Form. Arizona v. Inter Tribal Council of Arizona, Inc.,__ U.S. __, 133 S. Ct. 2247, 2253-60 

(2013) (hereinafter “Inter Tribal Council”). The Court further stated, “Arizona may, however, 

 2 Arizona did not seek to challenge the EAC’s final decision on the 2006 request under the APA, and the 

time for doing so has now expired. See 28 U.S.C. § 2401(a).
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request anew that the EAC include such a requirement among the Federal Form’s state-specific 

instructions, and may seek judicial review of the EAC’s decision under the Administrative 

Procedure Act.” Id. at 2260.

On June 19, 2013, Arizona’s Secretary of State again requested that the EAC include 

state-specific instructions on the Federal Form relating to Arizona’s proof-of-citizenship 

requirements. On July 26, 2013, Arizona’s Attorney General submitted a follow-up letter in 

support of the state’s request. EAC000034-35; EAC000044-46. In a letter dated August 13, 

2013, the Commission informed Arizona that its request would be deferred until the 

reestablishment of a quorum of EAC commissioners, in accordance with the November 9, 2011, 

internal operating procedure issued by the EAC’s then-Executive Director, Thomas Wilkey

(“Wilkey Memorandum”). EAC000048. That memorandum set forth internal procedures for 

processing state requests to modify the state-specific instructions on the Federal Form, 

instructing that “[r]equests that raise issues of broad policy concern to more than one State . . . be 

deferred until the re-establishment of a quorum [of EAC commissioners].” EAC000049-50. 

2. Georgia

By letter dated August 1, 2013, Georgia’s Secretary of State requested, inter alia, that the 

EAC revise the Georgia state-specific instructions of the Federal Form due to a 2009 Georgia 

law that requires voter registration applicants to provide “satisfactory evidence of United States 

citizenship so that the board of registrars can determine the applicant’s eligibility.” EAC001856-

57; Ga. Code Ann. § 21-2-216(g). The Commission responded to Georgia’s request on August 

15, 2013, by informing the state that its request would be deferred in accordance with the Wilkey 

Memorandum. EAC001859-60.
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3. Kansas

On August 9, 2012, Kansas’s Election Director requested, inter alia, that the EAC 

provide an instruction on the Federal Form that “[a]n applicant must provide qualifying evidence 

of U.S. citizenship prior to the first election day after applying to register to vote.” EAC000099; 

Kan. Stat. Ann. § 25-2309(l). The EAC responded to the state by letter dated October 11, 2012, 

indicating that a decision on Kansas’s request regarding proof of citizenship would be deferred in 

accordance with the Wilkey Memorandum. EAC000101-02.

On June 18, 2013, after the Supreme Court decision in Inter Tribal Council, Kansas 

Secretary of State Kris Kobach renewed the state’s August 9, 2012, request to provide an 

instruction on the Federal Form regarding the state’s proof of citizenship requirements. 

EAC000103. In a follow-up August 2, 2013 letter, Mr. Kobach clarified that he had instructed 

county election officials to accept the Federal Form without proof of citizenship, but that those 

registrants would be eligible to vote only in federal elections. EAC000112-13. The EAC again 

deferred Kansas’s request in accordance with the Wilkey Memorandum. EAC000116-17.

Kansas and Arizona subsequently filed suit against the EAC in the United States District 

Court for the District of Kansas, challenging the EAC’s deferral of these requests. See Kobach

v. EAC, No. 5:13-cv-4095 (D. Kan. filed Aug. 21, 2013). On December 13, 2013, the district 

court remanded the Kansas and Arizona matters to the EAC with instructions to render a final 

agency action by January 17, 2014.3

 3 Although the EAC’s Executive Director had been delegated the authority to act for the Commission in 

responding to the States’ requests, the current Acting Executive Director initially followed her predecessor’s internal 

operating procedure (i.e., the Wilkey Memorandum), which stated that such requests should be deferred until there 

was a quorum of commissioners available to provide additional policy guidance. The Acting Executive Director 

believed that deferring the requests in accordance with the Wilkey Memorandum was the prudent course, and in the 

pending litigation the Commission argued that the district court should give deference to her decision. The district 

court determined that the Commission had unreasonably delayed in deciding Arizona’s and Kansas’s requests and 

therefore directed the Commission to take final action on those requests by January 17, 2014.

The Georgia request is not part of this pending federal 
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court litigation; however, as it presents similar issues, the Commission proceeds to take final 

action on that request as well.

B. Summary of Public Comments

On December 19, 2013, the EAC issued a Notice and Request for Public Comment 

(“Notice”) on the Arizona, Georgia, and Kansas requests. EAC210-11; 78 Fed. Reg. 77666 

(Dec. 24, 2013). The Commission also emailed its public comment request to its list of NVRA 

stakeholders and published the Notice on its website. In response to its request, the Commission 

received 423 public comments: one on behalf of the Arizona Secretary of State, one from the 

Kansas Secretary of State, twenty-two from public officials at thirteen different agencies at 

various levels of government, 385 from individual citizens, four from the groups of individuals 

and advocacy organizations that intervened in the pending lawsuit, and ten from other advocacy 

groups.

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1. Arizona submission

 Neither the Georgia Secretary of State nor any other Georgia state official submitted 

comments.

The Office of the Solicitor General for the State of Arizona submitted Arizona’s 

comments in support of its request to add Arizona’s documentary proof of citizenship 

requirements to its state-specific instructions on the Federal Form. EAC001700-02. Arizona 

included in its submission: Proposition 200, the initiative passed by the Arizona electorate 

establishing the voter registration citizenship requirements at issue here, EAC001626-30; the 

2004 official canvassing showing the percentage of the electorate that voted in favor of 

Proposition 200, EAC001632-49; and the district court’s findings of fact and conclusions of law 

 4 The above count excludes one comment which was a prank and three sets of supporting documents that 

were uploaded as separate comments. Thus, the website through which the public commenting process is managed 

shows a total of 427 comments received. See http://www.regulations.gov/#!documentDetail;D=EAC-2013-0004-

0001.
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in Gonzales v. State of Arizona, Civ. Action No. 06-128 (D. Ariz. Aug. 20, 2008) (ECF No. 

1041) (district court case culminating in Arizona v. ITCA), denying a permanent injunction 

against the enforcement of Arizona’s documentary proof of citizenship requirements, 

EAC001651-99. Arizona also submitted declarations of various Arizona state and county 

officials purporting to demonstrate the undue burden that would result from the maintenance of a 

dual voter registration system (i.e., maintaining separate voter registration lists for federal 

elections and state elections), which Arizona argues would be required by Arizona law if the 

EAC does not accede to Arizona’s request, and instances in which the Arizona officials indicate 

they determined that non-citizens had registered to vote, or actually had voted. EAC001703-48. 

Finally, Arizona submitted documents showing that the Department of Defense Federal Voting 

Assistance Program granted Arizona’s request to add Arizona’s documentary proof of 

citizenship requirements to the Federal Post Card Application, a voter registration and absentee 

ballot application created under the Uniformed and Overseas Citizens Absentee Voting Act. 

EAC001749-1802.

2. Kansas submission

The Kansas Secretary of State reiterated Kansas’s request that the EAC include the

state’s documentary proof of citizenship requirements on the Federal Form, based on the 

Secretary’s view that under the Supreme Court’s decision in Inter Tribal Council, the EAC has a 

non-discretionary duty under the U.S. Constitution to do so. EAC000563-65; EAC000578-610. 

Kansas provided affidavits and supporting documents from various state and local election 

officials that purport to demonstrate the number of non-citizens who illegally registered to, and 

did, vote in Kansas elections and to support Kansas’s position that additional proof of citizenship 

is necessary to enforce its voter qualification requirements. EAC000611-68. Kansas further 
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argued that unless the EAC adds the requested language to the Federal Form, the state will be 

required to implement a costly dual registration system.

3. Kobach v. EAC intervenor submissions

The four groups of individuals and advocacy organizations that intervened as defendants 

in the pending litigation each submitted public comments in response to the EAC’s Notice. 

EAC000710-20, EAC000723-51, EAC000754-887 (League of Women Voters group); 

EAC000910-1256, EAC001260-1542 (Valle del Sol group); EAC001809-26 (Project Vote); 

EAC001546-94 (ITCA group). The League of Women Voters and Valle del Sol groups argued

that the EAC lacks authority to grant the states’ requests because it lacks the requisite quorum of 

commissioners. The Valle del Sol and Project Vote groups argued that the requested changes 

were inconsistent with the NVRA’s purpose and that the states had not demonstrated a need for 

additional proof of citizenship to prevent fraudulent registrations. Project Vote contended that 

the documentary requirements would burden voter registration applicants, reduce the number of 

eligible voters, and violate the NVRA’s prohibition on formal authentication of eligibility 

requirements. The Inter Tribal Council of Arizona group conceded that the EAC has authority to 

grant or deny the states’ requests, but agreed with the other intervenor-defendant groups that the 

states have not demonstrated the necessity for their instructions because they have other means 

of verifying voter eligibility. 

4. Other advocacy group submissions

Of the ten comments from advocacy groups that have not intervened in the pending 

litigation, four supported and six opposed the states’ requests. True the Vote cited to voter 

registration processes in Canada and Mexico to support its claim that the instructions at issue are 

necessary for the states to assess voter eligibility and suggested that the requested state-specific 

instructions would lead to greater perceived legitimacy in the electoral process. EAC000707-09. 
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Similarly, Judicial Watch argued that if the EAC failed to update the form, it would undermine 

Americans’ confidence in the fairness of U.S. elections and thwart states’ ability to comply with 

the provisions of Section 8 of the NVRA regarding maintenance of voter rolls. EAC000474-80. 

Judicial Watch and the Federation for American Immigration Reform both suggested that the 

denial of the states’ requests would hinder individual states’ ability to maintain the integrity of 

elections. EAC001605-09. The Immigration Reform Law Institute argued that the EAC should 

grant the states’ requests because, in its view, the Supreme Court ruling in Inter Tribal Council 

requires it to do so. EAC001543-45.

The ACLU was one of seven non-intervenor advocacy groups that opposed the states’

requests. It argued that the documentation requirement would be overly burdensome, would 

violate the NVRA, and would discourage voter registration. EAC000888-96. The Asian 

American Legal Defense and Education Fund argued that Arizona, Georgia, and Kansas have 

histories of discrimination against Asian Americans, and argued that the true intent of the states’

laws was to disenfranchise eligible citizens. EAC001598-1603. The Coalition of Georgia 

Organizations contended that the additional requirements would make the registration process

harder instead of simplifying it, as they contend the NVRA intended. EAC001838-40.

Communities Creating Opportunity argued that the proposed requirement would 

adversely impact vulnerable and marginalized communities (low-income and people of color) 

the most. Further, the group asserted that the requested change would be costly and unnecessary, 

and would complicate, delay, and deter participation in the electoral process. EAC000699-700. 

Demos pointed to the decrease in voter registration since the enactment of Arizona’s Proposition 

200 and contended that the requested instructions would impair community voter registration 

drives by requiring documents that many citizens do not generally carry with them and may not 
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possess at all. EAC000900-07. The League of United Latin American Citizens (“LULAC”) 

shares that view and cited data purporting to show the small number of voter fraud cases between 

2000 and 2011 in Arizona compared to the millions of ballots cast in that timeframe. 

EAC000701-03.

5. State and local official submissions

Officials from Arizona’s Apache (EAC000560-61), Cochise (EAC000218), Mohave

(EAC000226-34) and Navajo (EAC000219) counties and Kansas’s Ford (EAC000220), Harvey

(EAC000421-23), Johnson (EAC001831-33) and Wyandotte (EAC001258-59) counties urged 

the EAC to grant the States’ requests. Angie Rogers, the Commissioner of Elections for the 

Louisiana Secretary of State, supported the States’ requests because she believes states have “the 

constitutional right, power and privilege to establish voting qualifications, including voter 

registration requirements[.]” EAC000216.

Rep. Martin Quezada of the Arizona House of Representatives and defendant-intervenor 

Sen. Steve Gallardo of the Arizona State Senate opposed Arizona’s request because they contend 

that the warnings and advisories contained on the Federal Form already deter non-citizens from 

voting, that there is no evidence of voter registration fraud, and that the requirement for 

additional proof of citizenship would burden citizens who do not possess the documents and 

would contravene the NVRA’s goal of creating a uniform, national voter registration process. 

EAC000704-05; EAC001618-21. Mark Ritchie, the Minnesota Secretary of State, asserted that 

some senior citizens in Minnesota do not have and cannot obtain proof of citizenship, that the 

expense of obtaining relevant documents might be tantamount to a poll tax, and that 

implementing the States’ proposals in his state would make it more difficult for citizens to 

register and could be an equal protection violation. EAC001804. U.S. Representative Robert 

Brady of Pennsylvania argued that the States’ requests are an attempt to disenfranchise eligible 
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voters and that the Federal Form already adequately requires applicants to affirm their 

citizenship. EAC001595.

6. Individual citizen submissions

Of the 385 citizen comments, the vast majority of which were made by Kansas residents, 

372 were in favor of the States’ requests. Several respondents expressed “high support” for the 

requests as crucial to preventing voter fraud, and argued that failure to grant the requests would 

create “havoc” in future elections, presumably because the States may be required to create 

separate registration databases for federal and state registrants. Others argued that the right to 

vote should not be hindered by what they consider incorrect and outdated state-specific 

instructions. Other citizens expressed the desire for elections to be orderly and their view that 

the EAC’s denial of the States’ requests would violate what they believe is the States’ exclusive 

power to set voter qualifications. Hans A. von Spakovsky, an attorney, former member of the 

Federal Election Commission, and former local election official in Fairfax County, Virginia,

argued that the EAC has no authority to refuse to approve state-specific instructions that deal 

with the eligibility and qualification of voters and that extant citizenship provisions on the 

Federal Form have been ineffective in discouraging non-citizens from illegally registering and 

voting. EAC000680-85.

Thirteen citizen commenters opposed the States’ requests because they believed that the 

proposals were unconstitutional, would limit and suppress the vote of certain classes of 

disadvantaged Americans, would make the voting process more restrictive, would discourage 

legitimate voters from voting, and were otherwise unnecessary. 
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II. CONSTITUTIONAL, STATUTORY, AND REGULATORY BACKGROUND

A. Constitution

The Qualifications Clause of the United States Constitution, Art. I, § 2, cl. 1, provides 

that in each state, electors for the U.S. House of Representatives “shall have the Qualifications 

requisite for Electors of the most numerous Branch of the State Legislature.” See also U. S. 

Const. amend. XVII (same for the U.S. Senate). This clause and the Seventeenth Amendment 

long have been held to give exclusive authority to the states to determine the qualifications of 

voters for federal elections. Inter Tribal Council, 133 S. Ct. at 2258.

By contrast, the Elections Clause of the Constitution provides that “[t]he Times, Places 

and Manner of holding Elections for Senators and Representatives, shall be prescribed in each 

State by the Legislature thereof; but the Congress may at any time by Law make or alter such 

Regulations, except as to the Places of chusing Senators.” U.S. Const. art. I, § 4, Cl. 1. In Inter 

Tribal Council, the Supreme Court held that the Election Clause’s “substantive scope is broad.” 

Inter Tribal Council, 133 S. Ct. at 2253. “‘Times, Places, and Manner,’ [the Supreme Court has] 

written, are ‘comprehensive words,’ which ‘embrace authority to provide a complete code for 

congressional elections,’ including, as relevant here . . . regulations relating to ‘registration.’” 

Id. at 2253 (quoting Smiley v. Holm, 285 U.S. 355, 366 (1932) (emphasis added)). Thus, in its 

latest decision on the Elections Clause, the Supreme Court reaffirmed its long held determination 

that the Elections Clause gives Congress plenary authority over voter registration regulations 

pertaining to federal elections. Although the states remain free to regulate voter registration 

procedures for state and local elections,5

 5 Such regulations, however, may not violate other provisions of the Constitution, such as by discriminating

against United States citizens on the basis of their race, color, previous condition of servitude, sex, or age over 18 

years. U.S. Const. amends. XIV, XV, XIX, XXVI.

they must yield to federal regulation of voter 
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registration procedures for federal elections. Id.; see also Cook v. Gralike, 531 U. S. 510, 523 

(2001); Roudebush v. Hartke, 405 U.S. 15, 24 (1972). 

B. National Voter Registration Act and Help America Vote Act

Exercising its authority under the Elections Clause, Congress enacted the NVRA in 1993 

in response to its concern that “discriminatory and unfair registration laws and procedures can 

have a direct and damaging effect on voter participation in elections for Federal office.” 42 

U.S.C. § 1973gg(a)(3). As originally enacted, the NVRA assigned authority to the Federal 

Election Commission “in consultation with the chief election officers of the States” to “develop a 

mail voter registration application form for elections for Federal office” and to “prescribe such 

regulations as are necessary to carry out” this responsibility, and further provides that “[e]ach 

State shall accept and use the mail voter registration application form prescribed by the [FEC].” 

42 U.S.C. §§ 1973gg-4(a)(1), 1973gg-7(a)(2). The FEC undertook this responsibility, in 

consultation with the States, and issued the original regulations on the Federal Form in 1994. 

NVRA Final Rule Notice, 59 Fed. Reg. 32,311 (June 23, 1994). In the Help America Vote Act 

of 2002 (“HAVA”), all of the NVRA functions originally assigned to the FEC were transferred 

to the EAC. 42 U.S.C. § 15532. Congress mandated in part the contents of the Federal Form

and explicitly limited the information the EAC may require applicants to furnish on the Federal 

Form. In particular, the form “may require only such identifying information . . . as is necessary

to enable the appropriate State election official to assess the eligibility of the applicant and to 

administer voter registration and other parts of the election process.” 42 U.S.C. § 1973gg7(b)(1) (emphasis added). Further, it “may not include any requirement for notarization or other 

formal authentication.” 42 U.S.C. § 1973gg-7(b)(3). The Federal Form must, however, “include 

a statement that . . . specifies each eligibility requirement (including citizenship)”; “contains an 

attestation that the applicant meets each such requirement”; and “requires the signature of the 
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applicant, under penalty of perjury.” 42 U.S.C. § 1973gg-7(b)(2). Additionally, pursuant to 

HAVA, the Federal Form must include two specific questions and check boxes for the applicant 

to indicate whether he meets the U.S. citizenship and age requirements to vote. 42 U.S.C. § 

15483(b)(4)(A).

C. The Federal Form

Pursuant to its rulemaking authority, the EAC has promulgated the requirements for a 

Federal Form that meets NVRA and HAVA requirements. See 11 C.F.R. part 9428

(implementing regulations); 42 U.S.C. §§ 1973gg-7(a), 15329. The form consists of three basic 

components: the application, general instructions, and state-specific instructions. 11 C.F.R. §§ 

9428.2 (a), 9428.3 (a); see also EAC000073-97. The application portion of the Federal Form

“[s]pecif[ies] each eligibility requirement,” including “U.S. Citizenship,” which is “a universal 

eligibility requirement.” 11 C.F.R. § 9428.4(b)(1). To complete the form, an applicant must 

sign, under penalty of perjury, an “attestation . . . that the applicant, to the best of his or her 

knowledge and belief, meets each of his or her state’s specific eligibility requirements.” 11 

C.F.R. §§ 9428.4(b)(2), (3). The state-specific instructions for Arizona, Georgia and Kansas 

include the requirement that applicants be United States citizens. See EAC000081, EAC000083, 

EAC000085.

Neither the NVRA nor the EAC regulations specifically provide a procedure for states to 

request changes to the Federal Form. The NVRA simply directs the EAC to develop the Federal 

Form “in consultation with the chief election officers of the States.” 42 U.S.C. §§ 

1973gg-7(a)(2). To that end, the regulations provide that states “shall notify the Commission, in 

writing, within 30 days of any change to the state’s voter eligibility requirements[.]” 11 C.F.R. § 

9428.6(c). The regulations leave it solely to the EAC’s discretion whether and how to 

incorporate those changes. Indeed, the Supreme Court has described the EAC’s authority and 
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duty to determine the contents of the Federal Form, including any state-specific instructions 

included therein, as “validly conferred discretionary executive authority.” Inter Tribal Council, 

133 S. Ct. at 2259 (emphasis added). Thus, the EAC is free to grant, deny, or defer action on 

state requests, in whole or in part, so long as its action is consistent with the NVRA and other 

applicable federal law. The EAC (and before it the FEC) received and acted upon numerous 

requests over the years from States to modify the Federal Form’s State-specific instructions in 

various respects.

III. THE COMMISSION’S ABILITY TO ACT ON THE REQUESTS IN THE ABSENCE OF A 

QUORUM OF COMMISSIONERS

Sections 203 and 204 of HAVA provide that the Commission shall have four members, 

appointed by the President with the advice and consent of the Senate, as well as an Executive 

Director, General Counsel, and such additional personnel as the Executive Director considers

appropriate. 42 U.S.C. §§ 15323, 15324. Section 208 of HAVA provides that “[a]ny action 

which the Commission is authorized to carry out under [HAVA] may be carried out only with 

the approval of at least three of its members.” Id. § 15328. Finally, Section 802(a) of HAVA 

directs that the functions previously exercised by the Federal Election Commission under Section 

9(a) of the NVRA, id. § 1973gg-7(a), would be transferred to the EAC. Id. § 15532.

All four of the appointed commissioner seats are currently vacant. Accordingly, several 

commenters have suggested that the EAC presently lacks the authority, in whole or in part, to act 

on the States’ requests for modifications to the state-specific instructions on the Federal Form.

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 6 The Valle del Sol group of commenters, for example, asserts the Commission’s staff cannot take any 

action on the requests in the absence of a quorum. See EAC001448-55. The League of Women Voters and Project 

Vote commenters, by contrast, argue that the Commission’s staff may act to deny the requests and thus maintain the 

Federal Form as it stands, but not to grant them and thus change the Form. See EAC000764-66; EAC001810-13.

 

Notably, the States do not assert that the Commission currently lacks authority to act on their 
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requests; indeed, the States believe that the EAC has a nondiscretionary duty to grant their 

requests. EAC000564-65, EAC000593-97. As explained below, under current EAC policy, as 

previously established in 2008 by a quorum of EAC commissioners, EAC staff has the authority 

to act on all state requests for modifications to the instructions on the Federal Form.

A. The 2008 Roles and Responsibilities Policy Delegates Federal Form

Maintenance Responsibilities to the Executive Director.

In 2008, the three EAC commissioners who were then in office unanimously adopted a 

policy entitled, “The Roles and Responsibilities of the Commissioners and Executive Director of 

the U.S. Election Assistance Commission.” See EAC000064-72 (“R&R Policy”). This policy 

“supersede[d] and replace[d] any existing EAC policy that [was] inconsistent with its 

provisions.” EAC000072. “The purpose of the policy,” according to the commissioners, was “to 

identify the specific roles and responsibilities of the [EAC’s] Executive Director and its four 

Commissioners in order to improve the operations of the agency.” EAC000065 (emphasis 

added). 

The commissioners were well aware of and cited to the general quorum requirements 

contained in Section 208 of HAVA, as well as the notice and public meeting requirements 

contained in the Government in the Sunshine Act, 5 U.S.C. § 552b(a)(2), which apply whenever 

a quorum of commissioners meets to discuss official agency business. EAC000065. Further, the 

commissioners were cognizant of the practical reality that, “[u]ltimately, if all functions of the 

Commission (large and small) were performed by the commissioners, the onerous public 

meeting process would make the agency unable to function in a timely and effective matter [sic]. 

Recognizing these facts, HAVA provides the EAC with an Executive Director and staff. (42 

U.S.C. § 15324).” EAC000065. Finally, the commissioners recognized that “HAVA says little 

about the roles of the Executive Director and the Commissioners,” but that “a review of the 
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statute, the structure of the EAC and EAC’s mission suggest a general division of responsibility”

among them, whereby the commissioners would set policy for the agency, and the Executive 

Director would implement that policy and otherwise take operational responsibility for the 

agency. EAC000065.

More specifically, under the R&R Policy, the commissioners are responsible for 

developing agency policy, which is defined as “high-level determination, setting an overall 

agency goal/objective or otherwise setting rules, guidance or guidelines at the highest level.” 

EAC000064. The Commission “only makes policy through the formal voting process” of the 

commissioners. Id. Among the policy matters specifically reserved to the commissioners, for 

example, are “[a]doption of NVRA regulations” and “[i]ssuance of Policy Directives.” 

EAC000065.

The EAC commissioners delegated the following responsibilities (among others) to the 

Executive Director under the R&R policy: “[m]anage the daily operations of EAC consistent 

with Federal statutes, regulations, and EAC policies”; “[i]mplement and interpret policy 

directives, regulations, guidance, guidelines, manuals and other policies of general applicability 

issued by the commissioners”; “[a]nswer questions from stakeholders regarding the application 

of NVRA or HAVA consistent with EAC’s published Guidance, regulations, advisories and 

policy”; and “[m]aintain the Federal Voter Registration Form consistent with the NVRA and 

EAC Regulations and policies.” EAC000070-71. 

The Executive Director was further directed to “issue internal procedures which provide 

for the further delegation of responsibilities among program staff and set procedures (from 
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planning to approval) for all program responsibilities.”7

B. The Commissioners’ Delegation of Federal Form Maintenance Responsibilities 

to EAC Staff is Presumptively Valid Under Federal Law and Does Not 

Contravene HAVA.

 EAC000072. Finally, while the R&R 

policy directs the Executive Director to keep the commissioners informed of “all significant 

issues presented and actions taken pursuant to the authorities delegated [by the R&R policy],” it 

also specifically provides that “the commissioners will not directly act on these matters.” Id.

(emphasis added). Rather, the commissioners will use the information provided by the 

Executive Director to “provide accurate information to the media and stakeholders” and to 

determine “when the issuance of a Policy Directive is needed to clarify or set policy.” Id.

The three EAC commissioners’ unanimous adoption of the 2008 Roles and 

Responsibilities policy, wherein agency policy implementation and operational responsibilities 

(including Federal Form maintenance responsibilities) were delegated to the Executive Director, 

was “carried out . . . with the approval of at least 3 of [the EAC’s] members,” as required by 

Section 208 of HAVA. As a general matter, “[w]hen a statute delegates authority to a federal 

officer or agency, subdelegation to a subordinate federal officer or agency is presumptively 

permissible absent affirmative evidence of a contrary congressional intent.” U.S. Telecom Ass’n 

v. F.C.C., 359 F.3d 554, 565 (D.C. Cir. 2004). “Express statutory authority is not required for 

delegation of authority by an agency; delegation generally is permitted where it is not 

inconsistent with the statute.” National Ass’n of Psychiatric Treatment Centers for Children v. 

 7 The Valle del Sol commenters mistakenly cite to the 2011 Wilkey Memorandum as the source of the 

Executive Director’s authority to act on requests for modifications to the Federal Form’s instructions. EAC001448-

55. In fact, the Executive Director derives authority to act on Federal Form maintenance matters from the 2008 

R&R policy. The 2011 Wilkey Memorandum was merely an internal operating procedure that described how the 

then-executive director sought to exercise and delegate (or temporarily refrain from acting upon) the responsibilities 

that the Commission had delegated to him. That memorandum did not and could not have limited the scope of the 

commissioners’ original delegation to the Executive Director, which included plenary authority to implement the 

EAC’s NVRA regulations and NVRA and HAVA requirements, and to maintain the Federal Form consistent 

therewith.
18

Mendez, 857 F. Supp. 85, 91 (D.D.C. 1994); accord Ashwood Manor Civic Ass’n v. Dole, 619 F.

Supp. 52, 65-66 (E.D. Pa. 1985). 

In the absence of an express statutory authorization for an agency to delegate authority to 

a subordinate official, one must look to “the purpose of the statute” to determine the parameters 

of the delegation authority. Inland Empire Public Lands Council v. Glickman, 88 F.3d 697, 702

(9th Cir. 1996). Obviously, “[i]f Congress clearly expresses an intent that no delegation is to be 

permitted, then that intent must be carried out.” Ashwood Manor Civic Ass’n, 619 F. Supp. at 

66. On the other hand, in the absence of a specific statutory prohibition or limitation of an 

agency’s delegation authority, the default rule is that an agency can do so. See, e.g., Loma Linda 

University v. Schweiker, 705 F.2d 1123, 1128 (9th Cir. 1983) (upholding delegation of HHS 

Secretary’s statutory review authority to subordinate official where “Congress did not 

specifically prohibit delegation”).

As the EAC commissioners themselves recognized in the R&R policy, “HAVA says little 

about the roles of the Executive Director and the Commissioners,” but the statute and the EAC’s 

structure suggest that there should be a “general division of responsibility” as between the 

commissioners and the Executive Director. EAC000064. Additionally, HAVA contains no 

provisions which speak directly to the issue of delegation. As Congress noted, HAVA was 

enacted, in part, “to establish the Election Assistance Commission to assist in the administration 

of Federal elections and to otherwise provide assistance with the administration of certain

Federal election laws and programs.” H.R. Rep. No. 107-730, at 2 (Oct. 8, 2002) (Conf. Rep.). 

There is nothing about that statutory purpose that suggests that it would be inappropriate for the 

EAC to delegate agency functions to the agency’s staff. Indeed, as the EAC commissioners 

acknowledged, such division of responsibilities would “improve the operations of the agency”
19

and avoid creating situations where the agency was “unable to function in a timely and effective 

[manner].” 

Thus, the delegations of authority to the Executive Director in the R&R policy do not 

appear to conflict with HAVA. In particular, the existence of a quorum provision in Section 208 

of HAVA does not prohibit the Commission from delegating administrative and implementing 

authority to its subordinate staff, so long as such delegation of authority is “carried out . . . with 

the approval of at least 3 of its members,” as it was in this instance. Cf. 42 U.S.C. § 15328.8

Included within the general duty to implement and interpret the agency’s policies is the 

specific duty to “[m]aintain the Federal Voter Registration Form consistent with the NVRA and 

EAC Regulations and policies.” EAC000072. “Maintain” means “to keep (something) in good 

condition by making repairs, correcting problems, etc.” See Merriam-Webster Online,

http://www.merriam-webster.com/dictionary/maintain (last visited Jan. 12, 2014). In the context 

of the Federal Form, “maintain” includes making such changes to the general and state-specific 

instructions as is necessary to ensure that they accurately reflect the requirements for registering 

to vote in federal elections. 

 

The R&R policy does not cede policymaking authority to EAC staff; rather, it directs the staff to 

“implement and interpret” the agency’s policies consistent with federal law and EAC 

regulations. 

 8 In similar circumstances, courts have upheld agency delegations of authority to subordinate staff, even 

when, at the time the staff takes the action in question, the agency lacks its statutorily required quorum. See, e.g.,

Overstreet v. NLRB, 943 F. Supp. 2d 1296, 1297-1303 (D.N.M. 2013) (upholding NLRB general counsel’s limited 

exercise of agency’s enforcement authority, pursuant to a previous delegation by a qualifying quorum, and stating 

that such prior delegation “survives the loss of a quorum”); California Livestock Prod. Credit Ass’n v. Farm Credit 

Admin., 748 F. Supp. 416, 421-22 (E.D. Va. 1990) (agency’s sole board member was authorized to act, even in 

absence of statutorily required quorum based on previous delegation of authority by a qualifying quorum).
20

The EAC’s regulations do not prescribe and have never prescribed the text of the Federal 

Form’s general and state-specific instructions. Rather, they mandate that in addition to the actual 

application used for voter registration, the Federal Form shall contain such instructions, and they 

partially define what should be included within those instructions. See 11 C.F.R. § 9428.3. EAC 

staff (and before it, FEC staff) has always had the responsibility and discretion to develop and, 

where necessary, revise and modify the text of the Federal Form’s instructions in a manner that 

comports with the requirements of federal law and the EAC’s regulations and policies. That 

remains the case whether or not a quorum of commissioners exists at any given time.

Having determined, based on the foregoing, that the Commission has the authority to act 

on these requests even in the absence of a quorum of commissioners, we proceed to address the 

merits of the States’ requests.

IV. ANALYSIS

A. Congress Specifically Considered and Rejected Proof-of-Citizenship 

Requirements When Enacting the NVRA.

In determining whether and how to implement state-requested revisions to the Federal 

Form, the EAC has been guided in part by the NVRA’s legislative history. When considering 

the NVRA, Congress deliberated about—but ultimately rejected—language allowing states to 

require “presentation of documentary evidence of the citizenship of an applicant for voter 

registration.” See H.R. Rep. No. 103-66, at 23 (1993) (Conf. Rep.). In rejecting the Senate 

version of the NVRA that included this language, the conference committee determined that such 

a requirement was “not necessary or consistent with the purposes of this Act,” could “permit 

registration requirements that could effectively eliminate, or seriously interfere with, the mail 

registration program of the Act,” and “could also adversely affect the administration of the other 

registration programs . . . .” Id. (emphasis added). Congress’s rejection of the very requirement 
21

that Arizona, Georgia, and Kansas seek here is a significant factor the EAC must take into 

account in deciding whether to grant the States’ requests. See, e.g., Hamdan v. Rumsfeld, 548 

U.S. 557, 579-80 (2006) (“Congress’ rejection of the very language that would have achieved the 

result the [States] urge[] here weighs heavily against the [States’] interpretation.”).9

B. The Requested Proof-of-Citizenship Instructions Are Inconsistent With the 

EAC’s NVRA Regulations.

In promulgating regulations under the NVRA, the FEC “considered what items are 

deemed necessary to determine eligibility to register to vote and what items are deemed 

necessary to administer voter registration and other parts of the election process in each state.” 

59 Fed. Reg. 32311 (June 23, 1994) (NVRA Final Rules). The FEC observed that it was 

“charged with developing a single national form, to be accepted by all covered jurisdictions, that 

complies with the NVRA, and that . . . specifies each eligibility requirement (including 

citizenship).” Further, while determining that the “application identify U.S. Citizenship (the only 

eligibility requirement that is universal),” the FEC rejected public comments proposing that 

naturalization information be collected by the Federal Form because the basis of citizenship was 

deemed irrelevant. As the FEC explained:

The issue of U.S. citizenship is addressed within the oath required by the Act and 

signed by the applicant under penalty of perjury. To further emphasize this 

prerequisite to the applicant, the words “For U.S. Citizens Only” will appear in 

prominent type on the front cover of the national mail voter registration form. For 

these reasons, the final rules do not include th[e] additional requirement [that the 

Federal Form collect naturalization information].

59 Fed. Reg. at 32316. Furthermore, in response to other public comments suggesting that states 

could simplify their eligibility requirements so that they can be listed on the Federal Form along 

 9 In addition to Congress’s specific rejection of the type of instructions the States now seek, the text of the 

statute as enacted prohibits the Federal Form from requiring “formal authentication.” 42 U.S.C. § 1973gg-7(b)(3). 

As Project Vote notes in its comment, requiring additional proof of citizenship would be tantamount to requiring 

“formal authentication” of an individual’s voter registration application. EAC001820-21.
22

with citizenship, the FEC expressed a concern not to “unduly complicate the application” in light 

of the “variations in state eligibility requirements[.]” Id. at 32314. 

As a result of HAVA, the FEC and the EAC engaged in joint rulemaking transferring the 

NVRA regulations from the FEC to the EAC, but made “no substantive changes to those 

regulations.” 74 Fed. Reg. 37519 (July 29, 2009). Accordingly, the FEC and the EAC, in their 

implementing regulations, specifically considered and determined, in their discretion, that the 

oath signed under penalty of perjury, the words “For U. S. Citizens Only” and later the relevant 

HAVA citizenship provisions, see 42 U.S.C. § 15483(b)(4)(A) (adding to the Federal Form two 

specific questions and check boxes indicating the applicant’s U.S. citizenship), were all that was 

necessary to enable state officials to establish the bona fides of a voter registration applicant’s 

citizenship. Thus, granting the States’ requests here would contravene the EAC’s deliberate 

rulemaking decision that additional proof was not necessary to establish voter eligibility.

C. The Requested Proof-of-Citizenship Instructions Are Inconsistent With the 

EAC’s Prior Determinations.

In addition, the EAC, both by the staff and a duly-constituted quorum of commissioners, 

has already denied the very same substantive request that is at issue here. As set forth above, by 

letter dated March 6, 2006, the Commission rejected Arizona’s December 2005 request to add its 

citizenship documentation requirement to the state-specific instructions for the Federal Form. 

EAC000002-04. We explained that the “NVRA requires States to both ‘accept’ and ‘use’ the 

Federal Form,” and that “[a]ny Federal Registration Form that has been properly and completely 

filled out by a qualified applicant and timely received by an election official must be accepted in 

full satisfaction of registration requirements.” EAC000004. We concluded that a “state may not 

mandate additional registration procedures that condition the acceptance of the Federal Form.” 

Id.
23

Arizona’s then-Secretary of State, Jan Brewer, wrote several letters of protest to the 

EAC’s then-Chairman, Paul DeGregorio, who recommended to his fellow commissioners that 

they grant Arizona an “accommodation” and include Arizona’s proof of citizenship requirements

in the state-specific instructions on the Federal Form. See EAC000007-08, EAC000011, 

EAC000013-14. The four sitting Commissioners rejected Chairman DeGregorio’s proposal by a 

2-2 vote. EAC000010. By virtue of this decision not to amend the decision, the EAC

established a governing policy for the agency, consistent with the NVRA, HAVA, and EAC 

regulations, that the EAC will not grant state requests to add proof of citizenship requirements to 

the Federal Form. 

The States’ current requests for inclusion of additional proof-of-citizenship instructions 

on the Federal Form are substantially similar to Arizona’s 2005 request. (Indeed, Arizona’s 

request is essentially the same request, involving the exact same state law.) As discussed herein, 

the States have not submitted sufficiently compelling evidence that would support the issuance 

of a decision contrary to the one that the Commission previously rendered with respect to 

Arizona in 2006.

D. The Supreme Court’s Inter-Tribal Council Opinion Guides the EAC’s 

Assessment of the States’ Requests.

As noted above, several organizations challenged Arizona’s implementation of its proofof-citizenship requirement, culminating in the Supreme Court’s 2013 ruling in Inter Tribal 

Council, 133 S. Ct. 2247. It is clear from Inter Tribal Council that the EAC’s task in responding 

to the States’ requests is to determine whether granting their requests is necessary to enable state 

officials to assess the eligibility of Federal Form applicants.
24

1. The scope of the Elections Clause is broad.

The Supreme Court began its analysis in Inter Tribal Council by observing that the 

Elections Clause “imposes the duty . . . [on States] to prescribe the time, place, and manner of 

electing Representatives and Senators” but “confers [on Congress] the power to alter those 

regulations or supplant them altogether.” Id. at 2253. “The Clause’s substantive scope is 

broad,” the Court continued. “‘Times, Places, and Manner’ . . . are ‘comprehensive words,’

which ‘embrace authority to provide a complete code for congressional elections,’ including, as 

relevant here . . . , regulations relating to ‘registration.’” Id. at 2253 (citing, inter alia, Smiley v. 

Holm, 285 U.S. 355, 366 (1932)).

2. The NVRA requirement that states accept and use the Federal Form

preempts the States’ proof-of-citizenship requirements.

Having established that the Elections Clause empowers Congress to regulate voter 

registration procedures for federal elections, the Court examined the text of the NVRA’s 

provisions governing the Federal Form. It noted that in addition to creating the Federal Form

and requiring states to “accept and use” it, the statute also authorizes states “to create their own, 

state-specific voter-registration forms, which can be used to register voters in both state and 

federal elections.” Id. at 2255 (citing 42 U.S.C. § 1973gg-4(a)(2)). Any state form must “meet 

all of the criteria” of the Federal Form “for the registration of voters in elections for Federal 

office.” 42 U.S.C. §§ 1973gg-4(a)(2). The authority given to states to develop their own form 

for use in state and federal elections “works in tandem with the requirement that States ‘accept 

and use’ the Federal Form. States retain the flexibility to design and use their own registration 

forms, but the Federal Form provides a backstop: No matter what procedural hurdles a state’s 

own form imposes, the Federal Form guarantees that a simple means of registering to vote in 

federal elections will be available.” Id. at 2255. 
25

Thus, the Court “conclude[d] that the fairest reading of the [NVRA] is that a Stateimposed requirement of evidence of citizenship not required by the Federal Form is ‘inconsistent 

with’ the NVRA’s mandate that States ‘accept and use’ the Federal Form.” Id. at 2257. The 

Court also noted that “while the NVRA forbids States to demand that an applicant submit 

additional information beyond that required by the Federal Form, it does not preclude States 

from ‘deny[ing] registration based on information in their possession establishing the applicant’s 

ineligibility.’” Id. at 2257 (citing Brief of the United States as Amicus Curiae at 24).

3. The NVRA provisions governing the contents of the Federal Form are 

consistent with the Constitution’s allocation of power over federal 

elections.

In reaching its ruling, the Court was cognizant of the Constitution’s clauses in Article I 

and the Seventeenth Amendment empowering states to set voter qualifications for federal 

elections. “Prescribing voting qualifications,” it stated, “‘forms no part of the power to be 

conferred upon the national government’ by the Elections Clause.” Id. at 2258 (quoting The 

Federalist No. 60, at 371 (A. Hamilton)). The Court characterized the voter qualification clauses 

and the Elections Clause as an “allocation of authority” that “sprang from the Framers’ aversion 

to concentrated power.” Id. at 2258. 

In other words, the Court recognized some potential tension between the Elections Clause 

and the voter qualification clauses. In particular, it noted that “[s]ince the power to establish 

voting requirements is of little value without the power to enforce those requirements, . . . it 

would raise serious constitutional doubts if a federal statute precluded a State from obtaining the 

information necessary to enforce its voter qualifications.” Id. at 2258-59. 

The Court concluded, however, that the NVRA, as interpreted by the United States, did 

not run afoul of this limitation on Congress’s power because it compels the Federal Form to 

require from applicants “such . . . information . . . as is necessary to enable the appropriate State 
26

election official to assess the eligibility of the applicant . . . .” 42 U.S.C. § 1973gg-7(b)(1); see

Inter Tribal Council, 133 S. Ct. at 2259. As a result of this requirement, the Court concluded, “a 

State may request that the EAC alter the Federal Form to include information the State deems 

necessary to determine eligibility” and may challenge a rejection of such a request under the 

Administrative Procedure Act. Id. at 2259. Therefore, “no constitutional doubt is raised” by the 

statute. Id. at 2259.

4. The EAC is bound by both the NVRA and the Court’s opinion in Inter 

Tribal Council to determine whether the States’ requests are 

necessary to enable them to assess the eligibility of Federal Form

applicants.

As described above, while Congress provided that the EAC must consult with the 

nation’s chief state election officials in the development of the Federal Form, it is the EAC that 

ultimately has the responsibility and discretionary authority to determine the Federal Form’s 

contents, to prescribe necessary regulations relating to the Federal Form, and to “provide 

information to the States with respect to the responsibilities of the States under [the NVRA].” Id.

§ 1973gg-7. 

This discretionary authority, however, is limited by the terms of the statute, which 

provide, among other things, that the Federal Form may only require from applicants “such . . . 

information . . . as is necessary to enable the appropriate State election official to assess the 

eligibility of the applicant . . . .” Id. § 1973gg-7(b)(1). 

Kansas and Arizona argue that the Constitution’s voter qualification clauses as 

interpreted by the Court in Inter Tribal Council bestow on the EAC a nondiscretionary duty to 

grant the States’ requests and relieve the agency of its obligation to develop the form consistent 

with the NVRA’s limitations. EAC000564, EAC000593-97. However, neither the language of 

the Constitution nor of Inter Tribal Council supports such an argument. 
27

First, the States claim that the Constitution “expressly” grants to states “the power to 

establish and enforce voter qualifications for federal elections” and does so “to the exclusion of 

Congress.” EAC000590 (emphasis added). To the contrary, nothing in the Constitution 

prohibits the federal government from also enforcing state-established voter qualifications 

relating to federal elections, so long as the states are not precluded from doing so. Second, the 

Court describes the NVRA’s delegation of authority to the EAC to develop the Federal Form

subject to the prescribed limitations as “validly conferred discretionary executive authority.” Id.

at 2259. The Court uses this phrase in approving the United States’ interpretation of the NVRA 

as requiring the Federal Form to contain the information necessary to enable states to enforce 

their voter qualifications, as well as limiting the Form to that information. See id. at 2259. In the 

EAC’s judgment, the States attempt to impose an unnatural reading on the Court’s language. 

Furthermore, the language of the NVRA confers on the agency the authority and the duty to 

exercise its discretion in carrying out the statute’s provisions. The agency will not adopt such a 

strained reading of this brief passage to circumvent statutory language by which it would 

otherwise be bound.

We conclude that the States’ contention that the EAC is under a nondiscretionary duty to 

grant their requests is incorrect. Rather, as the Court explained in Inter Tribal Council, the EAC 

is obligated to grant such requests only if it determines, based on the evidence in the record, that 

it is necessary to do so in order to enable state election officials to enforce their states’ voter 

qualifications. If the States can enforce their citizenship requirements without additional proofof-citizenship instructions, denial of their requests for such instructions does not raise any 

constitutional doubts.
28

E. The Requested Proof-of-Citizenship Instructions Would Require Applicants to 

Submit More Information Than is Necessary to Enable Election Officials to 

Assess Eligibility.

The States’ primary argument in support of their requests is that the EAC is under a 

constitutional, nondiscretionary duty to grant those requests, see EAC000563-65, which as 

discussed above, is incorrect. However, both Arizona and Kansas also indicate that they believe 

their requested changes are necessary to enforce their citizenship requirements and not merely a 

reflection of their legislative policy preferences. See EAC000044-46, EAC000564. Therefore, 

to ensure that the Federal Form continues to comply with the constitutional standard set out in 

Inter Tribal Council and the statutory standard set out in the NVRA, the Commission must

consider whether the States have demonstrated that requiring additional proof of citizenship is 

necessary for the States to enforce their citizenship requirements. For the reasons discussed 

below, we conclude that the States have not so demonstrated.

1. The Federal Form currently provides the necessary means for 

assessing applicants’ eligibility.

The Federal Form already provides safeguards to prevent noncitizens from registering to 

vote. The Form requires applicants to mark a checkbox at the top of the Form answering the 

question, “Are you a citizen of the United States of America,” and directs applicants (in bold red 

text) that they must not complete the Form if they check “No” in response to the question. 

Should applicants proceed to complete the application, they are also required to sign at the 

bottom of the Form an attestation that “I am a United States citizen” and “The information I have 

provided is true to the best of my knowledge under penalty of perjury. If I have provided false 

information, I may be fined, imprisoned, or (if not a U.S. citizen) deported from or refused entry 

to the United States.” EAC000078. In addition, the cover page for the Form states in large, 

boldface type, “For U.S. Citizens.” EAC000073.
29

In Arizona’s correspondence with the EAC and in the States’ brief filed in Kobach v. 

EAC, the States argue that a sworn statement such as that required by the Federal Form is 

“virtually meaningless” and “not proof at all.” EAC000045; EAC000605. In support of this 

argument, the States rely on a remark made by a Supreme Court justice during oral argument in 

Inter Tribal Council. However, remarks by justices at oral argument have no force of law and 

cannot serve as the basis for this agency’s decision-making. 

In fact, a written statement made under penalty of perjury is considered reliable evidence 

for many purposes. See, e.g., Fed. R. Civ. P. 56(c)(1)(A) (permitting parties in civil cases to cite 

written affidavits or declarations in support of an assertion that a fact is not in genuine dispute);

United States v. Reed, 719 F.3d 369, 374 (5th Cir. 2013) (criminal defendant’s affidavit

“constitutes competent evidence sufficient, if believed, to establish” facts in support of his 

ineffective assistance of counsel claim); United States v. Haymond, 672 F.3d 948, 959 (10th Cir. 

2012) (FBI agent’s affidavit provided sufficient evidence of probable cause to search criminal 

defendant’s home); Siddiqui v. Holder, 670 F.3d 736, 742-743 (7th Cir. 2012) (amnesty 

applicant may satisfy his burden of proof by submitting credible affidavits sufficient to establish 

the facts at issue); 26 U.S.C. § 6065 (requiring any tax return, declaration, statement, or other 

document required under federal internal revenue laws or regulations to be made under penalty 

of perjury).

The overwhelming majority of jurisdictions in the United States have long relied on 

sworn statements similar to that included on the Federal Form to enforce their voter 

qualifications, and the EAC is aware of no evidence suggesting that this reliance has been 

misplaced. As discussed below, the evidence submitted by Arizona and Kansas in connection 

with their requests does not change this conclusion. Rather, the EAC finds that the possibility of 
30

potential fines, imprisonment, or deportation (as set out explicitly on the Federal Form) appears 

to remain a powerful and effective deterrent against voter registration fraud. As several 

commenters note, Arizona, Kansas, and Georgia all relied on such sworn statements for many 

years prior to their recent enactment of additional requirements. EAC000769; EAC001816-17.

Additionally, two commenters note that Arizona election officials have previously 

recognized that the benefit to a non-citizen of fraudulently registering to vote is distinctly less 

tangible than the loss of access to his or her home, job, and family that would come with 

deportation. See EAC001820; EAC001558 (citing Letter from Office of the Secretary of State of 

Arizona, July 18, 2001, Joint Appendix at 165-66, Inter Tribal Council, 133 S. Ct. 2247 (No. 12-

71), 2012 WL 6198263 (“It is generally believed that the strong desire to remain in the United 

States and fear of deportation outweigh the desire to deliberately register to vote before obtaining 

citizenship. Those who are in the country illegally are especially fearful of registering their 

names and addresses with a government agency for fear of detection and deportation.”)); see also

EAC001558-59, EAC001571 (citing 30(b)(6) Dep. of Maricopa County Elections Dep’t (through 

Karen Osborne) at 29:16-23, Jan. 14, 2008, Gonzalez v. Arizona, No. 06-CV-1268 (D. Ariz.) (“I 

cannot believe that [any noncitizen] would want to jeopardize their situation after having lived 

here for many years, make their reports every year to the INS, pay their taxes, and do everything, 

I cannot believe that they would want to jeopardize, especially at the cost of a felony, and then 

the thought of not being able to stay and not get citizenship . . . .”)).

Finally, as also noted by one commenter, Arizona and Kansas still accept sworn 

statements as sufficient for certain election-related purposes—for example, for an in-county 
31

change of address in Arizona,10 an in-state change of address in Kansas,11 or an application for 

permanent advance voting status in Kansas due to disability.12

The EAC finds that the evidence in the record is insufficient to support the States’

contention that a sworn statement is “virtually meaningless” and not an effective means of 

preventing voter registration fraud.

 EAC000893.

2. Evidence submitted by Arizona and Kansas

In further support of their requests, Arizona and Kansas submit evidence in the form of

declarations and affidavits by several state and county election officials, letters from the Kansas 

Secretary of State referring several matters to county attorneys, and documents reflecting heavily 

redacted voter registration and motor vehicle records. EAC001738-40, EAC000611-68. 

Georgia did not submit any evidence or arguments in support of its request other than a 

description of its voter registration procedures, either at the time of its request or in response to 

the EAC’s Notice requesting public comment. EAC001856-57. With the exception of the 

referral letters and documents reflecting voter registration and motor vehicle records at 

EAC000629-68, all of the evidence submitted by Arizona and Kansas was included in public 

court filings prior to the start of the public comment period.13

Arizona

 The evidence is summarized as 

follows:

• According to an election official in Maricopa County, Arizona, between 2003 and 

2006, at least 37 individuals contacted the recorder’s office in Maricopa County 

and indicated that they were in the process of applying for U.S. citizenship, but 

were found to have previously registered to vote in Arizona. EAC001739 ¶ 8.

 10 See http://www.azsos.gov/election/VoterRegistration.htm.

11 See http://www.kssos.org/forms/Elections/voterregistration.pdf.

12 See Kan. Stat. § 25-1122d(c); http://www.kssos.org/forms/Elections/AV2.pdf.

13 See Kobach v. EAC, No. 13-CV-4095 (D. Kan.), ECF Nos. 19, 20, 25, 101-1, 103.
32

• According to the Maricopa County election official, in 2005, the recorder’s office 

in Maricopa County referred evidence to the county attorney indicating that some 

individuals who had registered to vote in the county may have been noncitizens. 

To the best of the official’s recollection, there were 159 individuals implicated. A 

large number of these individuals had submitted statements to the jury 

commissioner that they were not citizens. The county attorney brought felony 

charges against ten noncitizens for filing false voter registration forms. 

EAC001740 ¶ 10.

Kansas

• According to an election official in the Kansas Secretary of State’s office, the 

office is able to review state driver license data to determine whether individual 

registrants may have been unlawfully registered to vote. For example, in 2009 

and 2010, the office obtained a list of individuals who had obtained temporary 

driver’s licenses in Kansas, which are issued only to noncitizens, and compared 

that list to its list of registered voters. EAC000611 ¶ 2.

• According to the Kansas election official, upon comparing the temporary license 

and voter lists in 2009, the Kansas Secretary of State’s office identified 13 

individuals who had been issued temporary driver’s licenses and were also 

registered to vote. EAC000611-12 ¶ 3. One of these individuals provided a 

naturalization number on his/her voter registration application. EAC000619 ¶¶ 3-

4. 

• According to referral letters sent in 2009 by the Kansas Secretary of State to four 

county attorneys, the information for these 13 individuals matched on name, date 

of birth, and last four digits of social security number. EAC000632; EAC000637; 

EAC000640; EAC000659. Documentation provided with the letters indicates that 

9 of these individuals had submitted completed Kansas Voter Registration 

Application forms, EAC000634, -38, -42, -44, -46, -48, -61, -63, -66, and 2 had 

submitted voter registration applications through the Division of Motor Vehicles, 

EAC000650, -54. The documents do not indicate how the remaining 2 

individuals registered.

• According to the Kansas election official, upon comparing the temporary license 

and voter lists in 2010, the Kansas Secretary of State’s office identified 6 

individuals who had been issued temporary driver’s licenses and were registered 

to vote. EAC000620 ¶ 5. No additional information about these individuals has 

been submitted.

• According to the Kansas election official, in 2010, the election commissioner for 

Sedgwick County, Kansas, notified the Kansas Secretary of State’s office that he 

had been contacted by the U.S. Department of Homeland Security and provided 

the name of a noncitizen who was found to have registered to vote in Kansas. 

EAC000612 ¶ 4.
33

• According to the election commissioner for Sedgwick County, Kansas, in 2013, 

her office received a voter registration application submitted through the Kansas 

Division of Motor Vehicles by an individual who subsequently informed the 

office that he/she is not a U.S. citizen. EAC000625-26.

• According to the county clerk for Finney County, Kansas, in 2013, an individual 

submitted to her office a completed and signed Kansas Voter Registration 

Application form along with copies of a foreign birth certificate and a U.S. 

Permanent Resident Card. EAC000627-31.

The States argue that this evidence demonstrates that requiring additional proof of 

citizenship is necessary to enable them to enforce their citizenship requirements. EAC000564. 

However, we conclude that this is incorrect because (a) the evidence fails to establish that the 

registration of noncitizens is a significant problem in either state, sufficient to show that the 

States are, by virtue of the Federal Form, currently precluded from assessing the eligibility of 

Federal Form applicants, and (b) the evidence reflects the States’ ability to identify potential 

non-citizens and thereby enforce their voter qualifications relating to citizenship, even in the 

absence of the additional instructions they requested on the Federal Form.

The States argue that the evidence submitted demonstrates generally that noncitizens 

have registered to vote in Arizona and Kansas, EAC000605, and specifically that 20 noncitizens 

have registered to vote in Kansas, EAC000564-65. Several commenters question the reliability 

of the States’ contentions.

14

 14 The commenters point to two specific shortcomings: (1) they note that statements made to a jury 

commissioner are not always reliable, since some citizens may falsely claim to be non-citizens in order to avoid jury 

service, EAC001560, EAC001589; EAC001475, EAC001145; and (2) they point out that it is possible that the 

driver license database information that Kansas relied upon may include citizens who became naturalized after 

obtaining their license, EAC001560-61; see also EAC001473-74.

 For present purposes, however, we assume that Arizona has 

demonstrated that 196 noncitizens were registered to vote in that state and that Kansas has 

demonstrated that 21 noncitizens were registered to vote or attempted to register in that state. 
34

This data nevertheless fails to demonstrate that the States’ requests must be granted in order to 

enable them to assess the eligibility of Federal Form applicants.

At the time Kansas’s new proof-of-citizenship requirement took effect in January 2013, 

there were 1,762,330 registered voters in the state.15

At the time Proposition 200 took effect in January 2005, there were 2,706,223 active 

registered voters in Arizona.

 Thus Kansas’s evidence at most suggests 

that 21 of 1,762,330 registered voters, approximately 0.001 percent, were unlawfully registered 

noncitizens around the time its new proof-of-citizenship requirement took effect. EAC001561-

62; see also EAC000770; EAC001472.

16

There were 1,598,721 active registered voters in Maricopa County at this time,

 Thus Arizona’s evidence at most suggests that 196 of 2,706,223 

registered voters, approximately 0.007 percent, were unlawfully registered noncitizens around 

the time that Proposition 200 took effect. EAC001561. 

17

By any measure, these percentages are exceedingly small. Certainly, the administration 

of elections, like all other complex functions performed by human beings, can never be 

so these 

196 noncitizens comprised just 0.01 percent of registered voters in Maricopa County, also a very 

small percentage. See EAC000770; EAC001475. Additionally, as noted in one comment, 

during the Inter Tribal Council litigation, election officials from three other Arizona counties 

gave deposition testimony stating that they were not able to find any evidence of noncitizens 

registering to vote between 1996 and 2006. EAC001476, EAC001236-46.

 15 See State of Kansas Office of the Secretary of State, 2013 January 1st (Unofficial) Voter Registration 

Numbers, available at http://www.kssos.org/elections/elections_registration_voterreg.asp (last visited Jan. 12, 

2014).

16 See State of Arizona Registration Report, January 2005, http://azsos.gov/election/voterreg/2005-01-

01.pdf.

17 See State of Arizona Registration Report, January 2005, http://azsos.gov/election/voterreg/2005-01-

01.pdf.
35

completely free of human error. In the context of voter registration systems containing millions 

of voters, the EAC finds that the small number of registered noncitizens that Arizona and Kansas 

point to is not cause to conclude that additional proof of citizenship must be required of 

applicants for either state to assess their eligibility, or that the Federal Form precludes those 

states from enforcing their voter qualifications.

Our conclusion that some level of human error is inevitable is reinforced by the evidence 

Kansas submitted suggesting that three noncitizens have registered to vote by submitting 

applications through the state’s Division of Motor Vehicles. As one comment notes, Kansas 

requires driver’s license applicants to provide documentation of their citizenship status. 

EAC001559-60 (citing http://www.ksrevenue.org/dmvproof.html). Thus, these registrants were 

already required to show, apparently at the time they were applying to register to vote (in 

connection with their simultaneous driver license transaction), the type of citizenship evidence 

the States now seek to require and yet they were still offered the opportunity to register to vote 

and their registrations were still accepted, both presumably as a result of human error. These 

cases provide no support for the proposition that Kansas’s requested instruction is necessary to 

enable it to enforce its citizenship requirement.

Finally, we note, as have several commenters, that the proof-of-citizenship laws enacted 

in Arizona, Kansas, and Georgia all exempt individuals who were registered at the time the laws 

took effect from complying with the new proof-of-citizenship requirements. These laws 

therefore treat previously registered voters differently from voters yet to register, but the States 

have not provided any evidence suggesting that voters attempting to register before the laws took 

effect were any more or less likely to be noncitizens than those attempting to register after the 

laws took effect. This suggests that the information required by the Federal Form has 
36

historically been considered sufficient to assess voter eligibility, even in the recent past. 

EAC001817. In conjunction with the paucity of evidence provided by the States regarding 

noncitizens registering to vote, this aspect of the laws suggests that the new requirements reflect 

the States’ legislative policy preferences and are not based on any demonstrated necessity. 

EAC001562; EAC000892.

3. Additional evidence noted by comments

Several comments note evidence of noncitizens registering to vote in other states. See, 

e.g., EAC001607-08; EAC001544; EAC000683-84. Other comments note that efforts in other 

states have identified only small numbers of noncitizens on the voter rolls, see EAC1474-75, and 

that voter fraud generally is rare, see EAC001620. The evidence submitted does not suggest that 

there have been significant numbers of noncitizens found to have registered to vote in other 

states. Rather, the evidence appears similar in magnitude to that which Arizona and Kansas have 

submitted. In any event, we find that the limited anecdotal evidence from other states does not 

establish that Arizona, Kansas, and Georgia will be precluded from assessing the eligibility of 

Federal Form applicants if the Commission denies their requested instructions.

4. Additional means of enforcing citizenship requirements

Occasional occurrences of unlawful registrations are no more reflective of the inefficacy 

of the existing oaths and attestations for voter registration than are the occasional violations of 

any other laws that rely primarily on oaths and attestations, such as those prohibiting the filing of 

false or fraudulent tax returns. As long as a state is able to identify illegal registrations and 

address any violations (whether through removal from the voter rolls, criminal prosecution, 

and/or other means), and the occurrence of such violations is rare, then the state is able to 

enforce its voter qualifications. And as the Supreme Court noted in Inter Tribal Council, nothing
37

precludes a State from “deny[ing] registration based on information in their possession 

establishing the applicant’s ineligibility.” Inter Tribal Council, 133 S. Ct. at 2257.

18

As discussed below, the States have a myriad of means available to enforce their 

citizenship requirements without requiring additional information from Federal Form applicants.

a) Criminal prosecution

Section 8 of the NVRA mandates that states inform voter registration applicants of the 

“penalties provided by law for submission of a false voter registration application.” 42 U.S.C. § 

1973gg-6(a)(5)(B). Section 9 of the NVRA and EAC regulations likewise require that 

information regarding criminal penalties be provided on the Federal Form “in print that is 

identical to that used in the attestation portion of the application.” Id. § 1973gg-7(b)(4)(i); 11 

C.F.R. § 9428.4(b)(4). Federal law and the laws of Arizona, Georgia, and Kansas all impose 

serious (usually felony-level) criminal penalties for false or fraudulent registration and voting.19

 18 The converse is also true: absent any evidence in the state’s possession that contradicts the specific 

information on the voter registration application, to which the applicant has attested under penalty of perjury, the 

registration official should accept the sworn application as sufficient proof of the applicant’s eligibility and register 

that applicant to vote in Federal elections in accordance with Section 8(a)(1) of the NVRA. See 42 U.S.C. § 

1973gg-6(a)(1) (requiring States to “ensure that any eligible applicant is registered to vote” in Federal elections “if 

the valid voter registration form of the applicant” is submitted or received by the close of registration).

Additionally, unlawful registration or voting by a non-citizen can result in deportation or 

inadmissibility for that non-citizen. See 8 U.S.C. §§ 1227(a)(3)(D), (a)(6), 1182(a)(6)(C)(2), 

(a)(10)(D).

19 See, e.g., 18 U.S.C. § 1015(f) (false claim of citizenship in connection with voter registration or voting; 

imprisonment for 5 years and a $250,000 fine); 42 U.S.C. § 15544(b) (same); 18 U.S.C. § 611 (Class A 

misdemeanor penalty for voting by aliens; imprisonment for 1 year and a $100,000 fine); 42 U.S.C. § 1973gg-10(2) 

(false or fraudulent registration or voting generally; imprisonment for 5 years and a $250,000 fine); 18 U.S.C. § 911 

(false and willful misrepresentation of citizenship; imprisonment for 3 years and a $250,000 fine); Ariz. Rev. Stat. 

§§ 16-182 (false registration; class 6 felony), 16-1016 (illegal voting; class 5 felony); Ga. Code Ann. §§ 21-2-561 

(false registration; felony; imprisonment for 10 years and a $100,000 fine), 21-2-571 (unlawful voting; felony; 

imprisonment for 10 years and a $100,000 fine); Kan. Stat. §§ 25-2411 (election perjury; felony), 25-2416 (voting 

without being qualified; misdemeanor). 
38

The evidence submitted by Arizona and Kansas shows that the States are able to enforce 

their voter qualifications through the initiation of criminal investigations and/or prosecutions 

under their state criminal laws, where necessary. EAC000632-68; EAC001738-40. To be sure, 

the numbers of these criminal investigations and prosecutions appear to be quite small; however, 

there is no evidence in the record to suggest that the small number of criminal referrals is 

attributable to anything other than the strength of the deterrent effect resulting from the existence 

of these criminal laws.20

b) Coordination with driver licensing agencies 

 Indeed, as the ITCA commenters point out, Arizona officials have 

previously acknowledged this very fact. EAC001558-60 & n.12.

One available measure is suggested by Kansas’s own evidence describing procedures to 

identify potential non-citizens on its voter rolls by comparing the list with a list of Kansas 

residents who hold temporary driver’s licenses issued to noncitizens. EAC000611-12 ¶¶ 2-3; 

EAC000620 ¶ 5. Using accurate, up-to-date, and otherwise reliable data, this procedure could 

potentially be applied to prospective registrants. Indeed, Section 202 of the REAL ID Act of 

2005, Pub. L. No. 109-13, 119 Stat. 231, 312-15 (2005), requires state driver licensing agencies 

that wish for their IDs to be honored by federal agencies to collect documentary proof of 

citizenship for U.S. citizens, verify it, and retain copies of it in their databases.21

 20 The ITCA commenters also note that the vast majority of these criminal investigations do not result in 

prosecutions. EAC001559-62.

 Section 303 of 

HAVA requires that voter registrants provide their driver’s license number or the last four digits 

21 Georgia and Kansas have reported that they are fully compliant with the REAL ID Act. See Department 

of Homeland Security, REAL ID Enforcement in Brief (Dec. 20, 2013), 

http://www.dhs.gov/sites/default/files/publications/REAL-ID-IN-Brief-20131220.pdf (last accessed Jan. 12, 2014). 

And while Arizona has not yet reported its full compliance with the REAL ID Act, Arizona law nevertheless 

mandates that the state may not “issue to or renew a driver license or nonoperating identification license for a person 

who does not submit proof satisfactory to the department that the applicant’s presence in the United States is 

authorized under federal law.” Ariz. Rev. Stat. § 28-3153(D); Ariz. Dep’t of Transp., Motor Vehicle Div., 

Identification Requirements, Form 96-0155 R09/13, http://www.azdot.gov/docs/default-source/mvd-forms-pubs/96-

0155.pdf?sfvrsn=2 (last accessed Jan. 12, 2014).
39

of their Social Security number if they have one, and mandates that state election agencies 

coordinate with state driver licensing agencies to share certain database information relevant to 

voter registration. 42 U.S.C. § 15483. While HAVA does not require states to seek to verify 

citizenship as part of database comparisons, states have the discretion to undertake such a 

comparison as an initial step in identifying possible non-citizens, bearing in mind that the 

information in driver license databases may be older than that in voter registration databases.22

c) Comparison of juror responses

Another measure is suggested by Arizona’s submission: using information provided to a 

jury commissioner. A person’s response under oath to a court official that he or she is not a 

citizen would certainly provide probable cause for an election official to investigate whether the 

person, if registered as a voter, does not meet the citizenship qualification. Such responses

relating to citizenship therefore provide election officials with another means of enforcing their 

voter qualifications.

d) The SAVE database 

The United States Citizenship and Immigration Services agency maintains a database of 

the immigration/citizenship status of lawful noncitizen and naturalized citizen residents of the 

United States. See USCIS, SAVE Program, http://www.uscis.gov/save (last accessed Jan. 12, 

2014). Government agencies may apply to use and access the federal SAVE database as one 

potential means of attempting to verify applicants’ immigration/citizenship status under 

appropriate circumstances. Id. Several Arizona county election offices are already using this 

database to attempt to verify citizenship of voter registration applicants. EAC000771.

 22 As the ITCA commenters note, a driver’s citizenship status at the time he or she initially applies for a 

driver’s license is not necessarily determinative of his or her citizenship status at the time of that driver’s registration 

to vote. EAC001560-61.
40

e) Requesting and verifying birth record data 

The National Association for Public Health Statistics and Information Systems 

(NAPHSIS), a national association of state vital records and public health statistics offices, has 

developed and implemented an electronic system called Electronic Verification of Vital Events 

(EVVE). The EVVE system allows member jurisdictions to immediately confirm birth record 

information for citizens virtually anywhere in the United States. Currently 50 of 55 U.S. states 

and territories are either online or in the process of getting online with the EVVE birth record 

query system.23

The above methods appear to provide effective means for identifying individuals whose 

citizenship status may warrant further investigation.

 Thus, to the extent election officials are unable to confirm an applicant’s oath 

and attestation of citizenship on the voter registration application through coordinating with a 

driver licensing bureau or using the SAVE Database, they could follow up directly with the 

affected applicant and request additional information that would enable them to make a query 

through the EVVE system (such as place of birth, mother’s maiden name, etc.).

24

In conclusion, the Commission finds, based on the record before it, that the States are not 

“precluded...from obtaining the information necessary to enforce their voter qualifications,” and 

that the required oaths and attestations contained on the Federal Form are sufficient to enable the 

States to effectuate their citizenship requirements. Cf. Inter-Tribal Council, 133 S. Ct. at 2259-

60. Thus, the States have not shown that the EAC is under a “nondiscretionary duty,” id. at 

 23 See NAPHSIS, EVVE Vital Records Implementation: Birth Queries (December 2013), 

http://www.naphsis.org/about/Documents/EVVE_Implementation_Dec_2013%20Birth%20Queries%20with%20yea

rs.pptx (last accessed Jan. 12, 2014).

24 Federal law also provides states with additional tools for verifying voter registration applications by mail. 

The NVRA allows states to require first-time registrants by mail to vote in person the first time (with limited 

exceptions). 42 U.S.C. § 1973gg-4(c). HAVA also requires states to take certain verification steps with regard to 

first time registrants by mail (with limited exceptions). 42 U.S.C. § 15483.
41

2260, to include the States’ requested instructions despite Congress’s previous determination, 

when it enacted the NVRA, that such instructions are generally “not necessary or consistent with 

the purposes of this Act,” could “permit registration requirements that could effectively 

eliminate, or seriously interfere with, the mail registration program of the Act,” and “could also 

adversely affect the administration of the other registration programs....” H.R. Rep. No. 103-66, 

at 23 (1993) (Conf. Rep.).

F. The Requested Changes Would Undermine the Purposes of the NVRA.

1. The States’ requested changes would hinder voter registration for 

Federal elections.

As discussed above, Congress enacted the NVRA in part to “increase the number of 

eligible citizens who register to vote in elections for Federal office” and to “enhance[] the 

participation of eligible citizens as voters in elections for Federal office.” 42 U.S.C. 

§ 1973gg(b). In enacting the statute, Congress found that “the right of citizens of the United 

States to vote is a fundamental right” and that “it is the duty of the Federal, State, and local 

governments to promote the exercise of that right.” Id. § 1973gg(a).

The district court in the Inter Tribal Council litigation found that between January 2005 

and September 2007, over 31,000 applicants were “unable (initially) to register to vote because 

of Proposition 200.” Gonzalez v. Arizona, No. 06-CV-1268, slip op. at 13 (D. Ariz. Aug. 20, 

2008), EAC001663. The court further found that of those applicants, only about 11,000 (roughly 

30 percent) were subsequently able to register. Id. at 14, EAC001664. Several comments 

provide additional evidence showing that implementation of Arizona’s and Kansas’s heightened 

proof-of-citizenship requirements has hindered the registration of eligible voters for federal 

elections. The requirements impose burdens on all registrants, and they are especially 

burdensome to those citizens who do not already possess the requisite documentation. 
42

EAC001821-23; EAC001465-71; EAC000771-73; EAC001563; EAC000705; EAC000895; 

EAC000901-07; EAC001620; EAC001804; EAC001839; EAC001601, EAC001603. Such 

burdens do not enhance voter participation, and they could result in a decrease in overall 

registration of eligible citizens. See, e.g., EAC0001823 (referencing news reports that since 

Kansas’s law took effect in January 2013, between 17,000 to 18,500 applicants have been placed 

in “suspense” status, mostly because of failure to satisfy the new citizenship proof requirements).

Based on this evidence, the EAC finds that granting the States’ requests would likely 

hinder eligible citizens from registering to vote in federal elections, undermining a core purpose 

of the NVRA.

2. The States’ requested changes would thwart organized voter 

registration programs.

It is also clear from the text of the NVRA that one purpose of the statute’s mail 

registration provisions is to facilitate voter registration drives. Specifically, Section 6(b) requires 

state election officials to make mail voter registration forms, including the Federal Form, 

“available for distribution through governmental and private entities, with particular emphasis on 

making them available for organized voter registration programs.” 42 U.S.C. § 1973gg-4(b); see 

also Charles H. Wesley Educ. Found. v. Cox, 408 F.3d 1349, 1353 (11th Cir. 2005) (NVRA 

encourages and protects community-based voter registration drives and obligates states to 

register eligible citizens if their valid registration forms are received by the registration deadline, 

thus “limit[ing] the states’ ability to reject forms meeting [the NVRA’s] standards”). 

A number of comments state that the heightened proof of citizenship requirements 

imposed by Arizona and Kansas have led to a significant reduction in organized voter 

registration programs during the time those requirements have been in effect. The comments 

indicate that this is due primarily to the logistical difficulties in providing the required proof, 
43

even for those that already possess it. EAC000772, EAC000710-19, EAC000737-42; 

EAC001466-67, EAC001469-70, EAC001176-80; EAC001620; EAC001825; EAC000904-07.

Based on the evidence submitted, the EAC finds that granting the States’ requests could 

discourage the conduct of organized voter registration programs, undermining one of the 

statutory purposes of the Federal Form.

G. The Requested Proof-of-Citizenship Instructions Are Not Similar to 

Louisiana’s Request for Modifications to the State-Specific Instructions.

Arizona and Kansas contend that it would be unfair or arbitrary for the Commission to 

approve Louisiana’s 2012 request to modify the Federal Form’s state-specific instructions to 

include HAVA-compliant language, and not to approve Arizona’s and Kansas’s requests to 

include additional proof-of-citizenship instructions.25

HAVA provides that federal voter registration applicants must provide their driver’s 

license number, if they have one, or the last four digits of their Social Security number. 42 

U.S.C. § 15483(a)(5)(A)(i). If they do not provide such information at the time of registration 

and they are registering by mail for the first time in a state, they will generally be required to 

show one of the following forms of identification the first time they vote in a federal election, 

irrespective of state law: a “current and valid photo identification” or “a copy of a current utility 

 In August 2012, the EAC approved 

Louisiana’s July 16, 2012, request to amend the state-specific instructions for Louisiana to 

provide that if the applicant lacks a Louisiana driver’s license or special identification card, or a 

Social Security number, he or she must attach to the registration application a copy of a current, 

valid photo identification, or a utility bill, bank statement, government check, paycheck, or other 

government document that shows the name and address of the applicant. EAC000167-71. 

 25 The Louisiana Secretary of State’s Office supports the States’ requests in this regard. EAC000216.
44

bill, bank statement, government check, paycheck, or other government document that shows the 

name and address of the voter.” Id. § 15483(b)(2)(A). One of the ways voters who register by 

mail can fulfill the HAVA ID requirement is to submit a copy of one of the HAVA-compliant 

forms of identification with their registration application. Id. § 15483(b)(3)(A). 

Louisiana’s request to modify the state-specific instructions thus largely flowed from 

HAVA’s identification requirements.

26

H. The Decision by the Federal Voting Assistance Program to Grant Arizona’s 

Request Has No Bearing on the States’ Requests to the EAC.

 By contrast, the States’ requests here seek to require 

federal voter registration applicants to supply additional proof of their United States citizenship 

beyond the oaths and affirmations already included on the Federal Form, even though such a 

requirement had already specifically been rejected by Congress when it enacted the NVRA. 

These are fundamentally different types of requests, and the EAC does not act unfairly and 

arbitrarily by reasonably treating them differently. 

Arizona notes that after passage of Proposition 200, the Federal Voting Assistance 

Program (“FVAP”) at the Department of Defense granted its request to add instructions 

regarding its proof-of-citizenship requirement to the Federal Post Card Application, a voter 

registration and absentee ballot application form for overseas citizens developed pursuant to the 

Uniformed and Overseas Citizens Absentee Voting Act (“UOCAVA”), 42 U.S.C. § 1973ff(b)(2). 

EAC001702, EAC001750-51. However, the UOCAVA is a separate statute from the NVRA and 

contains no language similar to the NVRA’s limitation that the Federal Form “may require only

 26 The League of Women Voters’ comments argue that Louisiana’s requested instructions regarding HAVA 

ID, see EAC000168, 000196, and the relevant portions of the Louisiana Election Code, see La. Rev. Stat. § 

18:104(A)(16), (G), are not in full compliance with HAVA or the NVRA. EAC000760. The EAC will consider the 

issues the comments have raised. After consulting with Louisiana officials, the Commission will consider whether 

there are necessary and appropriate modifications to item 6 of the state-specific instructions for Louisiana on the 

Federal Form to clarify any lingering confusion and to ensure the instruction is in full compliance with the 

requirements of HAVA relating to federal elections.
45

such identifying information . . . as is necessary to enable the appropriate State election official 

to assess the eligibility of the applicant and to administer voter registration and other parts of the 

election process.” 42 U.S.C. § 1973gg-7(b)(1). The FVAP’s decision therefore has no bearing 

on the States’ requests to the EAC.

I. The EAC’s Regulations Do Not Require Inclusion of State-Specific Instructions 

Relating Only to State and Local Elections.

Finally, Kansas contends that the EAC is required by its own regulations to include

information relating to the state’s proof-of-citizenship requirements. EAC000565. Specifically, 

Kansas invokes 11 C.F.R. § 9428.3(b), which provides that “the [Federal Form’s] state-specific 

instructions shall contain . . . information regarding the state’s specific voter eligibility and 

registration requirements.” By the terms of the NVRA, the Federal Form is a “mail voter 

registration application form for elections for Federal office.” 42 U.S.C. § 1973gg-7(a)(2) 

(emphasis added). Thus, the EAC’s regulatory provision quoted above can only require the 

Form’s state-specific instructions to include voter eligibility and registration requirements 

relating to registration for Federal elections.

As discussed above, the Commission has determined, in accordance with Section 9 of the 

NVRA and EAC regulations and precedent, that additional proof of citizenship is not “necessary 

. . . to enable the appropriate State election official to assess the eligibility of the applicant,” cf.

42 U.S.C. § 1973gg-7(b)(1), and will not be required by the Federal Form for registration for 

federal elections. Accordingly, the EAC is under no obligation to include Kansas’s requested 

instruction because it would relate only to Kansas’s state and local elections.

V. CONCLUSION

For the foregoing reasons, the Commission DENIES the States’ requests. 
46

Final Agency Action: This Memorandum of Decision shall constitute a final agency 

action within the meaning of 5 U.S.C. § 704. Notice of the issuance of this decision will be 

published in the Federal Register and posted on the EAC’s website, and copies of this decision 

will be served upon the chief election officials of the States of Arizona, Georgia, and Kansas, as 

well as all parties to the pending Kobach v. EAC litigation in the U.S. District Court for the 

District of Kansas. 

Done at Silver Spring, Maryland, this 17th day of January, 2014.

THE UNITED STATES ELECTION ASSISTANCE COMMISSION

BY:

Alice P. Miller

Chief Operating Officer and 

Acting Executive Director