[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]]

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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.

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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]
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