The Help America Vote Act is Supposed to Help Americans Vote

Late last year, Brian Newby left his job as the county election commissioner of Johnson County, Kansas, to take a position as executive director of the Election Assistance Commission. The EAC is an independent organization created by the Help America Vote Act of 2002 (HAVA) to serve as a national resource for information regarding the administration of elections.

It is charged with administering payments to states and developing guidance to meet HAVA requirements, adopting voluntary voting system guidelines, and accrediting voting system test laboratories and certifying voting equipment. It is also charged with developing and maintaining a national mail voter registration form.

Once Newby was ensconced in his new office, he promptly sided with a request from election officials in Kansas, Georgia, and Alabama that citizens of their states hoping to use the federal voter registration form be required to prove their American citizenship.

This is obviously the opposite of helping Americans vote, and he was promptly taken to court by the League of Women Voters and others. However, those voting rights organizers were just defeated in court, as U.S. District Judge Richard Leon ruled against granting them a temporary injunction preventing the implication of this new voting hurdle in these three states. Richard Leon was appointed to the United States District Court for the District of Columbia by President George W. Bush in 2002, the same year that HAVA was enacted.

Newby’s boss back in Kansas was the notorious Secretary of State, Kris Kobach, who is probably the most influential anti-immigration public official in the country. Kobach was deeply involved in the passage of Arizona’s SB 1070 law that was later found unconstitutional by the Supreme Court, and he reportedly crafted a similar law for Alabama. Kobach has also been a relentless proponent of the repeatedly debunked theory that in-person voter fraud is a frequent problem that threatens the integrity of our elections.

According to Steve Rose of the Kansas City Star, Newby understood that his boss was crusading for a false cause, but that did not prevent him from doing his bidding once he got to Washington, D.C.

Kobach pushed for laws that require Kansans who want to register to vote to come up with documents like a passport or birth certificate, which tens of thousands of Kansans — mostly poor — don’t have, and therefore they cannot vote. (Note: This is not about showing a driver’s license at the time you vote, which is a reasonable request.)

Newby told me that over his entire term he came across only a couple of instances of double-voting that could technically be defined as fraud. However, Newby was clear that he thought these were mistakes, not intentional fraud.

Newby was always coy when I asked what he thought of the restrictions on Kansans who want to vote, spearheaded by Kobach. If he could have gotten away with winking, I bet he would have. He never gave me a straight answer, but I had little doubt that his heart was in making it easy, not difficult, to register to vote.

Yet, Rose is forced to conclude that Newby made a deal with Kobach in order to secure his job with the Election Assistance Commission.

It appears that some sort of deal was made, or there was an unspoken agreement. If Kobach would help him get the job of executive director of the U.S. Elections Assistance Commission, which he did, according to uncovered emails, Newby would make sure that what Kobach was trying to do back in Kansas would get done.

It had been earlier ruled that Kobach and the state of Kansas — as well as Alabama and Georgia — were allowed to enforce tough document requirements for state races only.

However, when it came to national elections, the states could not interfere with the federal rules. Those rules, passed by Congress, required only a notarized statement that one was qualified to vote. The idea was to keep it simple and easy to vote.

Newby, on his own, without his commissioners’ knowledge, held discussions with the election officials in those three states, including Kobach, about implementing voter registration changes. He admitted this in a televised interview.

The upshot was, these states could require citizenship documents to register and vote in national elections. Kobach got his wish.

Apparently, an audit of the Johnson County election office has turned up financial improprieties, so Newby may have some legal problems to contend with, but that’s not my point. It’s difficult to follow all the legal proceedings here, but what concerns me is that the government has apparently gone to court to back up Newby’s administrative authority even while conceding in court filings that he is unlikely to prevail in the overall case because he “never determined, as required by the National Voter Registration Act, that the [required] documents were “necessary” to determine the eligibility of voters.”

Relatively few voters actually use the federal form to register, so this isn’t something that’s likely to throw an election from one candidate to another, but it does involve an important principle and a gross miscarriage of the intent of the Help America Vote Act in creating the U.S. Elections Assistance Commission.

Republican state election officials and Republican-appointed judges are still colluding to restrict the franchise. They’re doing it because they do better when fewer people vote, and that’s still true this year as Republican registration efforts lag behind the Democrats in key states.

Martin Longman

Martin Longman is the web editor for the Washington Monthly and the main blogger at Booman Tribune.