[Federal Register Volume 78, Number 247 (Tuesday, December 24, 2013)]
[Notices]
[Pages 77666-77667]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-30659]
[[Page 77666]]
=======================================================================
-----------------------------------------------------------------------
ELECTION ASSISTANCE COMMISSION
Notice and Request for Public Comment on State Requests To
Include Additional Proof-of-Citizenship Instructions on the National
Mail Voter Registration Form
AGENCY: U.S. Election Assistance Commission (EAC).
ACTION: Notice for Public Comment.
-----------------------------------------------------------------------
SUMMARY: The United States Election Assistance Commission (``EAC'')
seeks public comment on whether to amend the State-specific
instructions applicable to Arizona, Kansas, and Georgia on the National
Mail Voter Registration Form (``Federal Form''). Those States have
requested that the EAC modify their State-specific instructions on the
Federal Form to include State law requirements that, as a precondition
to registering to vote in Federal elections, voter registration
applicants provide additional proof of their United States citizenship
beyond that already required by the Federal Form. EAC is voluntarily
soliciting public comment on these requests from Arizona, Kansas, and
Georgia.
DATES: Comments must be in writing and must be submitted no later than
5:00 p.m. EST on January 3, 2014.
ADDRESSES: You may submit comments, identified by docket number EAC-
2013-0004 and title, by any of the following methods:
Federal eRulemaking Portal: http://www.regulations.gov. Follow the
online instructions for submitting comments. Do not submit
electronically any personally identifiable information (such as full
Social Security numbers, full dates of birth, and full driver's license
numbers) if its disclosure is restricted by statute. Such information
should be redacted to include only the last four digits of an
individual's Social Security number or other taxpayer identification
number, driver's license number, or account number, and only the year
of an individual's birth.
Mail or Courier Delivery: ATTN: NVRA Federal Form Comments, U.S.
Election Assistance Commission, 1335 East West Highway, Suite 4300,
Silver Spring, MD 20910. Please do not send duplicate copies via mail
or courier of comments that were submitted electronically via the
Federal eRulemaking Portal.
FOR FURTHER INFORMATION CONTACT: Ms. Karen Lynn-Dyson, Director,
Office of Research, Policy, and Programs, at (301) 563-3919 or 1-866-
747-1471 (toll-free), U.S. Election Assistance Commission, 1335 East
West Highway, Suite 4300, Silver Spring, MD 20910.
SUPPLEMENTARY INFORMATION:
Background: The EAC is the Federal agency charged with developing,
maintaining, and, where necessary, modifying the National Mail Voter
Registration Form mandated by Section 9(a) of the National Voter
Registration Act of 1993 (``NVRA''), 42 U.S.C. 1973gg-7(a). Pursuant to
Sections 4(a)(2) and 6(a) of the NVRA, id. Sec. Sec. 1973gg-2(a)(2)
and 1973gg-4(a), States covered by the NVRA must accept and use the
Federal Form for registration of voters in elections for Federal
office.
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'' and to ``prescribe such regulations as are necessary to carry
out'' this responsibility. 42 U.S.C. 1973gg-7(a). 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 FR 32,311 (June 23, 1994). In the Help America Vote Act of
2002 (``HAVA''), the FEC's responsibilities regarding the Federal Form
were transferred to the EAC. 42 U.S.C. 15532.
The EAC's discretion in developing the content of the Federal Form
is constrained by several statutory requirements, including those found
in Section 9(b) of the NVRA, 42 U.S.C. 1973gg-7(b), and Section
303(b)(4) of HAVA, id. Sec. 15483(b)(4). The EAC has promulgated
regulations that further delineate the contents and format of the
Federal Form. See 11 CFR Part 9428, Subpart B. The EAC commissioners
have delegated to the Executive Director of the EAC the day-to-day
responsibilities of implementing and interpreting EAC regulations and
policy, answering questions from stakeholders regarding the application
of NVRA or HAVA, and maintaining the Federal Form consistent with the
NVRA and EAC Regulations and policies.
State Requests to Modify State-Specific Instructions: The chief
election official of each State is responsible for notifying the EAC
within 30 days of any change in the State's voter eligibility
requirements or any other information reported under 11 CFR 9428.6.
Pursuant to those requirements, the FEC and later the EAC received
numerous requests over the years from States to modify the Federal
Form's State-specific instructions in various respects.
In recent years, the EAC has received requests from three States to
include State-specific instructions on the Federal Form requiring voter
registration applicants from their states to supply additional proof of
their United States citizenship as a precondition to registration.
These changes were requested as a result of the passage of State laws
requiring such additional proof of citizenship. Arizona first submitted
its request to the EAC to include such an instruction in 2005, as a
result of the State's passage in 2004 of a voter initiative known as
Proposition 200, later codified at Ariz. Rev. Stat Sec. 16-166(F).
Kansas first submitted its request to the EAC to include such
instructions in 2012, as a result of the State's passage in 2011 of
amendments to its voter registration laws, codified at Kan. Stat. Ann.
Sec. 25-2309(l). Georgia first submitted its request to the EAC to
include such instructions in 2013, as a result of the State's passage
in 2009 of amendments to its voter registration laws, codified at Ga.
Code Ann. Sec. 21-2-216(g).
On March 6, 2006, the EAC denied Arizona's original 2005 request to
include additional proof of citizenship instructions on the Federal
Form, finding 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. The
EAC also found that Congress had specifically considered but ultimately
rejected a provision in the NVRA that would have allowed states to
require documentary proof of citizenship, because such a provision was,
in Congress's words, ``not necessary or consistent with the purposes
of'' the NVRA. On the basis of these findings, the EAC concluded that
Arizona's proof of citizenship law was preempted by Federal law, and
that Arizona must accept the Federal Form for voter registration in
Federal elections, without requiring additional proof of citizenship.
In July 2006, after receiving a request from Arizona's Secretary of
State, the EAC's then-chairman requested that the EAC commissioners
grant an accommodation to Arizona by reconsidering the Executive
Director's March 6, 2006, final decision on behalf of the agency and
granting Arizona's request to include its requested proof-of-
citizenship instructions in the State-specific instructions on the
Federal Form. On July 11, 2006, the EAC commissioners denied the
chairman's motion for an accommodation by a tie vote of 2-2.
Private parties filed litigation against Arizona, challenging,
among other issues, Arizona's compliance with the NVRA, and this
litigation reached the Supreme Court during the 2012 Term.
[[Page 77667]]
In June 2013, the Supreme Court ruled that the NVRA preempts
inconsistent State law and States must accept and use the Federal Form
for voter registration purposes in elections for Federal office.
Arizona v. Inter Tribal Council of Arizona, Inc., ---- U.S. ----, 133
S. Ct. 2247, 2253-60 (2013) (hereinafter ``Inter Tribal Council'').
The EAC deferred consideration of the requests by Kansas and
Georgia pursuant to internal operating procedures put in place in 2011
by the former EAC Executive Director. These procedures provided that
requests that ``raise issues of broad policy concerns to more than one
state'' would be deferred until the EAC regained a quorum of its
commissioners, so that they would have the opportunity, if they
desired, to provide additional policy guidance to the Executive
Director and staff. Currently all four seats on the EAC are vacant.
Following the Supreme Court's decision in Inter Tribal Council in
June 2013, Arizona and Kansas renewed their requests to the EAC to
change the State-specific instructions on the Federal Form to include
additional proof-of-citizenship requirements, and the EAC likewise
deferred those renewed requests, in accordance with the 2011 EAC
internal procedures. Kansas and Arizona officials then initiated
litigation 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, as part of this litigation, the district court
remanded the Kansas and Arizona matters to the EAC with instructions
that the EAC render a final agency action on the Kansas and Arizona
requests to change the Federal Form by no later than January 17, 2014.
The Court's order provided that if the EAC has not acted by January 17,
2014, the States' requests will be deemed by the Court to have been
denied. The Georgia request is not part of this pending federal court
litigation.
Request for Public Comments: The EAC invites public comments on the
requests from Arizona, Kansas and Georgia to modify the State-specific
instructions for those States on the Federal Form to require additional
proof of citizenship under their respective state laws beyond the
existing requirements on the Federal Form. The EAC invites public
comments on any issues that commenters believe are relevant to the
EAC's consideration of these State requests. Comments must be in
writing and must be submitted no later than 5:00 p.m. EST on January 3,
2014.
Dated: December 19, 2013.
Alice Miller,
Chief Operating Officer and Acting Executive Director, U.S. Election
Assistance Commission.
[FR Doc. 2013-30659 Filed 12-23-13; 8:45 am]
BILLING CODE 6820-KF-P