Justices rebuff Ariz. on proof of citizenship

2013-06-18T00:00:00Z 2013-06-18T12:35:59Z Justices rebuff Ariz. on proof of citizenshipHoward Fischer Capitol Media Services Arizona Daily Star
June 18, 2013 12:00 am  • 

PHOENIX - Saying federal law trumps state, the U.S. Supreme Court ruled 7-2 on Monday that Arizona cannot demand proof of citizenship from individuals who use a federal voter registration form.

In an opinion written by Justice Antonin Scalia, the majority rejected arguments by state Attorney General Tom Horne that Arizona is free to demand more than the federal form requires.

The federal form mandates only that those registering to vote sign an affidavit attesting, under penalty of perjury, that they are citizens and eligible. But Horne argued that Arizona is free to reject those forms unless applicants also submit actual proof of citizenship, as mandated by a 2004 voter-approved law.

Monday's ruling specifically requires state and local election officials to accept and register those individuals who use the form prescribed by the National Voter Registration Act even if they provide no proof of citizenship.

Horne insisted Monday that the ruling was only a setback. He said the court said Arizona can petition the federal Election Assistance Commission to alter its form to allow Arizona to add that proof-of-citizenship requirement.

But Nina Perales, attorney for the Mexican American Legal Defense and Educational Fund, said Arizona made such a request in 2005 and was rejected by the four-member commission on a 2-2 vote.

"There is no reason to think Arizona would be successful on a second try, particularly because Arizona cannot point to a single instance of a noncitizen registering to vote or trying to register to vote using the federal form," she said. "With no facts on its side, Arizona cannot carry its burden of providing that registrants should include additional paperwork with their applications."

Secretary of State Ken Bennett acknowledged when the case was argued that he has no evidence people who are not citizens are registering to vote, either now with the federal form or before the 2004 proof-of-citizenship requirement.

Horne said he intends to try the Election Assistance Commission again. That is likely to prove fruitless: There are no commissioners now serving because the U.S. Senate has yet to confirm the president's appointments. Horne said, though, that could lead him back to the Supreme Court.

Monday's ruling does give Arizona a bit of wiggle room. The justices said the state can refuse to register even someone using the federal form, but only if election officials have "information in their possession establishing the applicant's ineligibility."

And nothing in the ruling prohibits the state from requiring citizenship proof from those who use state-created forms to register.

Local election officials have said the vast majority of those who do register use that state form.

Perales said the decision provides a new tool for groups conducting registration drives to now sign up new voters using the federal form - and without having to get applicants to submit one of the documents that Arizona considers acceptable. That includes an Arizona driver's license, passport or birth certificate.

The 2004 law requires both proof of citizenship to register and identification to cast a ballot at the polls. Foes challenged both.

The courts sided with the state on the ID at polling places requirement. Foes of the Arizona law never appealed that decision, and it was not an issue in Monday's ruling.

Horne, in his arguments to the high court, did not dispute that the National Voting Rights Act requires states to "accept and use" the federal voter registration form. But he argued that does not conflict with Arizona law.

"Because only U.S. citizens are eligible to vote, Proposition 200's evidence-of-citizenship requirement is consistent with the NVRA's express goals," Horne argued to the high court. "Congress did not intend the NVRA to bar states from properly assessing whether an applicant who registers to vote is eligible to vote."

And he argued that Arizona can add its own proof-of-citizenship requirements on top of everything required in the federal form.

Scalia dismissed that argument.

"For example, a government (decree) that 'civil servants shall accept government IOUs for payment of salaries' does not invite the response, 'sure, we'll accept IOUs - if you pay us a 10 percent down payment in cash,' " he wrote.

He also pointed out that the federal law says a state shall "ensure that any eligible applicant is registered to vote in an election ... if the valid voter registration form is postmarked" by a certain deadline.

"Yet Arizona reads the phrase 'accept and use' ... as permitting it to reject a completed Federal Form if the applicant does not submit additional information required by state law," Scalia wrote. "That reading cannot be squared with Arizona's obligation."

The court said it was not disturbing the requirement that those who use the state-designed form - the majority of those now registered to vote - must provide proof of citizenship.

What states may not do, Scalia wrote, is demand that those who register using the Federal Form provide everything the state registration form requires.

"If that is so, the Federal Form ceases to perform any meaningful function, and would be a feeble means of increasing the number of eligible citizens who register to vote in elections for federal office," he wrote.

In his dissent, Justice Clarence Thomas said the U.S. Constitution gives states the power to determine the qualifications for voting in federal elections.

Gov. Jan Brewer, who was secretary of state and chief election officer during much of the time the 2004 law was being challenged, brushed aside the significance of the decision.

"From what I understand, (it's) a very narrow ruling," she said, pointing out that Arizona remains free to require proof of citizenship in its own forms. Brewer said it will be up to Horne and Bennett to decide what to do now.

On StarNet: Read the Supreme Court decision on Arizona's election law at azstarnet.com/pdf

The VOTE

The 7-2 ruling limits the role played by the states in national elections and raises questions about similar laws in three other states - Alabama, Kansas and Georgia.

Justice Antonin Scalia, writing for the court, said the federal government has broad authority to displace state election rules.

Chief Justice John G. Roberts Jr. and Justices Ruth Bader Ginsburg, Stephen G. Breyer, Sonia Sotomayor and Elena Kagan joined all of the majority opinion, and Justice Anthony M. Kennedy joined most of it.

Justices Clarence Thomas and Samuel Alito dissented from the ruling.

- Wire reports

Copyright 2014 Arizona Daily Star. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.

Activate

Follow the Arizona Daily Star

Featured businesses

View more...

Deals, offers & events

View more...

Need Your Struts Repaired?

K&D Quality Auto is offering $50.00 off Strut Repair! Cli…