PHOENIX - A federal appeals court on Tuesday threw out a state mandate for people to provide proof of citizenship before they can register to vote.

In a divided decision, two members of the three-judge 9th U.S. Circuit Court of Appeals panel found the requirement, approved by Arizona voters in 2004, violates the federal National Voter Registration Act, which spells out what states can and cannot require to vote in federal elections.

Judge Sandra Ikuta, writing the majority decision, concluded the requirement to produce one of a list of specified documents proving citizenship is not allowed.

That conclusion drew derision from Secretary of State Ken Bennett who oversees elections. He said the proof is necessary to protect the integrity of elections. He compared the ruling to allowing people going through airports unchecked, as long as they sign a certificate vowing they are not terrorists and aren't carrying explosives. He plans to appeal.

Sen. Russell Pearce, R-Mesa, who wrote the 2004 measure, said the ruling "flies in the face of common sense."

"It should go without saying that states have the right to ensure that only citizens vote," he said.

Nina Perales, an attorney with the Mexican American Legal Defense and Educational Fund, one of the groups that sued, said there are parallels between this case and the more recent challenge to the state's new immigration law. In both cases, she said, judges have struck down efforts by Arizona to usurp federal authority.

"What the federal courts have done consistently now, recently, is told Arizona that these schemes that it's coming up with, whether it's voter registration schemes or whether they're immigrant regulation schemes, are outside the bounds, and that Arizona has to comply with the superseding federal law," she said.

Tuesday's decision comes less than a week before the 9th Circuit hears arguments about whether a federal judge correctly enjoined the state from enforcing that new immigration law. And in December the U.S. Supreme Court will review a different Arizona law allowing the state to suspend or revoke the business licenses of firms found guilty of knowingly hiring undocumented workers.

Nothing in the decision will affect Tuesday's election, as the deadline to register to vote was Oct. 4.

The new ruling split the three-judge panel.

Siding with Ikuta was retired U.S. Supreme Court Justice Sandra Day O'Connor who was sitting in as an acting appellate judge. Judge Alex Kozinski dissented, arguing that the full 9th Circuit reached a different conclusion three years ago.

But Ikuta said that 2007 ruling "was rooted in a fundamental misreading of the statute." She said it was based on the premise Arizona could either accept the federal registration form, which does not require proof of citizenship, or develop its own.

While striking down the proof-of-citizenship requirement, the court let stand the other key provision of the law which requires people to provide identification before being allowed to cast a ballot.

Ikuta, in Tuesday's ruling, said the U.S. Constitution gives the federal government control over voting procedures for national elections and lets Congress supersede any state election laws. She said Congress approved the voter registration act to preclude "discriminatory and unfair registration laws and procedures" which can affect voter participation.

That law ordered creation of a federal voter registration form which 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."

New voters must attest, under penalty of perjury, that they meet the citizenship and other conditions.

But Ikuta noted the law says the form "may not include any requirement for notarization or other formal authentication," language she said precludes proof of citizenship.

Pearce criticized what he called "activist" judges ignoring the rule of law.

"It is particularly disturbing that retired Justice O'Connor, who seems more and more like a politician these days, signed onto a decision that could undermine the integrity of our elections," Pearce said.

On StarNet: Read more about border- and immigration-related issues in Brady McCombs blog, Border Boletín, at

Did You Know

In 2004, 56 percent of Arizona voters approved the nation's only law requiring all would-be voters to prove they're U.S. citizens.

SOURCE: Star archives