June 17, 2013 – The U.S. Supreme Court today ruled that Arizona went too far in adding to federal voter registration law by requiring proof of citizenship. Federal law only requires registrants to mail-in a postcard claiming citizenship, under threat of perjury. The Arizona law required physical proof of citizenship. The decision could impact voter restrictions in several other states, including Texas where a photo voter ID requirement is pending approval by the Justice Department. Today's decision is the first of two cases dealing with voter rights heard by the court this term. A decision in an Alabama County's challenge of the landmark Voting Rights Act of 1965 is expected this week or next. Clinical Associate Professor Geoffrey Hoffman, director of the Immigration Clinic at the University of Houston Law Center, closely follows issues dealing with immigrant rights and citizenship. He takes a closer look at today's decision in Arizona v. Inter-Tribal Council of Arizona, Inc.
Q. What did the Supreme Court hold?
The Supreme Court held today in a 7-2 decision that an Arizona state law that required voters to provide "proof of citizenship" was preempted by the federal National Voter Registration Act (NVRA). The NVRA requires instead that voters state "under penalty of perjury" that they are U.S. citizens. Under the Arizona law, voter-registration officials were required to "reject" any application for registration that was not accompanied by documentary evidence of citizenship. Challengers to the Arizona law were a group of individual Arizona residents and a group of nonprofit organizations. The lower district court had granted Arizona summary judgment on respondents' claim that the NVRA pre-empts Arizona's requirement. The Ninth Circuit reversed and held in relevant part that the state law's documentary-proof-of-citizenship requirement was pre-empted by the NVRA.
Q.) What was the reasoning of the court?
Justice Scalia authored the majority opinion. Importantly, he pointed out that the National Voter Registration Act of 1993 (NVRA) requires states to "accept and use" a uniform federal form to register voters for federal elections. The so-called "Federal Form," developed by the federal Election Assistance Commission (EAC), requires only that an applicant aver, under penalty of perjury, that he is a citizen. Justice Scalia recognized that over the past two decades, Congress had erected a "complex superstructure" of federal regulation on top of state voter-registration systems. The majority opinion relied on the Elections Clause, Art. I, §4, cl. 1, of the Constitution which empowers Congress to pre-empt state regulations governing the "Times, Places and Manner" of holding congressional elections. The question presented here was whether the federal statutory requirement that states "accept and use" the Federal Form pre-empted Arizona's state-law requirement that officials "reject" the application of a prospective voter who submits a completed federal form unaccompanied by documentary evidence of citizenship. Justice Scalia wrote, "We conclude that the fairest reading of the statute is that a state-imposed requirement of evidence of citizenship not required by the federal form is "inconsistent with" the NVRA's mandate that states "accept and use" the federal form. The Elections Clause requires that the state's requirement "give way" to the federal law which does not require proof of citizenship.
Q.) Is the door left open in any way for the state of Arizona to challenge the implementation of the federal law?
Yes, Justice Scalia explicitly discussed the possibility that Arizona could challenge the Election Assistance Commission (EAC)'s decision not to change the federal form. A state is permitted to request that the EAC alter the federal form to include information the state "deems necessary to determine eligibility." This was conceded during oral argument. Justice Scalia noted that a state may challenge the EAC's rejection of that request in a suit under the Administrative Procedure Act (APA). The conservative justices were sympathetic to a state's goal of requiring proof of citizenship, so this is one way states could try to challenge the federal form itself. As Justice Scalia, noted, this "alternative means of enforcing its constitutional power to determine voting qualifications remains open to Arizona here." In 2005, the EAC divided 2-to-2 on the request by Arizona to include the evidence-of citizenship, which meant that no action could be taken.
Q.) How does this decision relate to Arizona's prior attempts to impose requirements on non-citizens, such as in the immigration case, Arizona v. U.S., decided last year?
In that decision, the Supreme Court struck down 3 of 4 provisions under Arizona state law that had attempted to impose penalties under state law against non-citizens for immigration-related violations. In that decision, as here, state law provisions were held preempted under the Supremacy Clause and specifically because of the federal scheme of extensive immigration laws. The elections decision today is consistent with the Arizona v. U.S. ruling. In Arizona v. U.S., the court agreed to uphold one provision that permits Arizona state law enforcement to ask about the immigration status of an individual if there is "reasonable suspicion" that a person is in the country unlawfully. Justice Kennedy however made it clear that state police cannot detain a person for a prolonged period and that challenges to the one state provision which was allowed could still be brought if racial profiling was shown to exist. The elections decision today also leaves the door open to a future challenge, this time on the part of the state of Arizona if it wanted to attempt to change the federal form to allow it to require documentary evidence of citizenship.
Q.) Was this ruling expected, given that the court last year shot down many restrictions aimed at immigrants by the state of Arizona?
This ruling was expected. However, there was some uncertainty after the oral argument held in March given that some of the justices appeared sympathetic to the state of Arizona's position. It should be noted that while it can be instructive to view this case in the light of an immigration case, it is not really an immigration case. Instead it is an election case which impacts potential voters who may be viewed as immigrants. In one sense, it is a clearer example of a state overreaching than Arizona v. U.S. because the state specifically mandated rejecting a federal form where an additional documentary component was not provided. In the prior case, there was not a federal form, although there were several federal laws which had already occupied the field at least with respect to some of the state provisions.
Q.) What does this mean for other states and future attempts to impose additional restrictions?
The case is significant in that it clearly will impact other states' attempts at restricting voting rights. It really is a victory for advocates of voting rights because in the past such documentary evidence restrictions have resulted not in increased fraud prevention but instead on reducing the voting rights of minorities. People, even though they are in actuality U.S. citizens, may be unable to prove it. There is no way to prove citizenship for a certain percentage of our population, and especially low income people who may have never received a passport or traveled abroad. If someone does not have a birth certificate or only a baptismal certificate, or was born by a midwife and not in a hospital, there have been many cases where citizenship is difficult if not impossible to prove.
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