Supreme Court to review Arizona law making would-be voters prove citizenship

The US Supreme Court agreed on Monday to take up a case examining whether an Arizona law requiring proof of US citizenship before allowing someone to register to vote is preempted by a federal voter registration act.

The Arizona law, known as Proposition 200, was enacted in 2004. It was aimed at preventing the state’s large population of illegal immigrants from either mistakenly or fraudulently registering and voting in local, state, and federal elections.

Critics said the new law imposed a substantial burden on the ability of citizens to register and cast ballots. They argued in a 2006 lawsuit that the Arizona requirement clashed with a 1993 federal law – the National Voter Registration Act (NVRA) – that set the terms for voter registration nationwide.

Those terms, the suit said, did not include a requirement that prospective voters show ID proving citizenship before being permitted to register to vote in a federal election.

States are free to develop their own voter registration requirements for state and local elections. But the question in the case is whether those same requirements can be imposed on those using the federal voter registration form under the NVRA.

While Arizona wanted to erect an additional safeguard to its voting process, the federal law sought to make it easier to register new voters. Rather than requiring production of documents proving citizenship, the NVRA asks those seeking to register to vote to attest in writing that they are, in fact, eligible to vote and to sign the statement under a penalty of perjury.

The NVRA allows states to require first-time voters who register by mail to vote in person so that the voter’s identity can be confirmed at that time.

At issue in the lawsuit was whether the state had the authority to impose an additional safeguard on the voter registration system, or whether that area had been completely occupied by Congress in the NVRA.

A federal judge found that more than 30,000 applications were denied in Arizona because of lack of acceptable citizenship documents. Less than 10,000 of the applicants were later able to register to vote, according to a brief filed in the case.

The Arizona law required would-be voters to present a valid driver’s license, birth certificate, passport, or naturalization papers to prove citizenship prior to registering to vote.

State lawyers are asking the Supreme Court to reverse an 8-to-2 decision of the Ninth Circuit Court of Appeals that blocked enforcement of the Arizona proof-of-citizenship requirement against those using the federal NVRA form to register to vote.

The high court refused to enter the fray in June, declining a request to issue a temporary stay of the Ninth Circuit ruling. On Monday, the justices agreed to take up the case to weigh the central issue in the case.

“The issue here is whether the Ninth Circuit’s narrow interpretation of ambiguous language in the NVRA to make it conflict with state law is correct in light of Elections Clause preemption principles,” Arizona Solicitor General David Cole wrote in his brief. “It is not.”

Four states that enacted laws similar to the Arizona statute asked the Supreme Court to take the case. The states, Alabama, Georgia, Kansas, and Texas, argue that the NVRA allows states to enforce additional registration requirements.

“The Ninth Circuit’s decision removes that check, and significantly changes the balance of power between the states and [a federal election agency],” Deputy Alabama Solicitor General Andrew Brasher wrote in his brief to the court.

Nina Perales, a lawyer representing those challenging the Arizona law, said in her brief there was no reason for the Supreme Court to take up the case.

“The Ninth Circuit correctly applied the court’s well-established analysis in Elections Clause cases to conclude that Arizona may not reject [federal election registration forms] that are sufficient under the NVRA but do not meet additional state documentation requirements,” she wrote.

She added that there is no conflict between the Ninth Circuit decision and other courts and that no other appeals courts have considered the issue.

“Despite our respect for the state's exercise of its sovereign authority ... the Constitution's text requires us to safeguard the specific enumerated powers that are bestowed on the federal government,” the Ninth Circuit said in its decision.

“The authority granted to Congress under the Elections Clause to ‘make or alter’ state law regulating procedures for federal elections is one such power,” the appeals court ruled. “The Framers of the Constitution were clear that the states' authority to regulate federal elections extends only so far as Congress declines to intervene.”

The Ninth Circuit added: “Given the paramount authority delegated to Congress by the Elections Clause, we conclude that the NVRA supersedes Proposition 200's conflicting registration requirement for federal elections.”

The case is Arizona v. Inter Tribal Council of Arizona (12-71).