Tuesday, June 18, 2013

Despite Media Claims, Arizona Voting Case A Victory For Those Who Seek Fair Elections

Yesterday, the Supreme Court voted 7-2 to invalidate an Arizona voter-approved requirement that prospective voters document their U.S. citizenship in order to use a registration form produced under the federal “Motor Voter” voter registration law.

Federal law "precludes Arizona from requiring a federal form applicant to submit information beyond that required by the form itself," Justice Antonia Scalia wrote for the court's majority.

However yesterday’s decision was actually a victory for Voter ID supporters because lost in the media’s coverage of the decision was that this decision actually uncorked states rights, J. Christian Adams former lawyer at the Justice Department Voting Section stated:

First, Arizona can simply push the state forms in all state offices and online, and keep those federal forms in the back room gathering dust. When you submit a state form, you have to prove citizenship. Thanks to Justice Scalia, that option is perfectly acceptable. Loss for the Left. Victory for election integrity. You might say, “That’s a small victory.” Nonsense. This was the whole ballgame to the groups pushing the Arizona lawsuit. They lost, period.

Next, when voters use a state, as opposed to a federal, form, they can still be required to prove citizenship. The federal form is irrelevant in that circumstance. After the decision today, states have a green light to do double- and triple-checking even if a registrant uses the federal form. The Left wanted the submission of a federal form to mean automatic no-questions-asked registration. This is a big loss for the Left because now states can put suspect forms in limbo while they run checks against non-citizen databases and jury-response forms. Another significant victory in today’s decision. The Left wanted to strip them of that double-checking power.

The federal "motor voter" law, requires states to offer voter registration when a resident applies for a driver's license or certain benefits. The provision at issue before the court, requires states to allow would-be voters to fill out mail-in registration cards and swear they are citizens under penalty of perjury, however it doesn't require them to show proof.

Under Proposition 200, Arizona officials simply sought to require proof in the form of an Arizona driver's license issued after 1996, a U.S. birth certificate, a passport or other similar document, or the state would reject the federal registration application form.

The National Voting Rights Act requires states to “accept and use” the federal form. This is well within Congress’s power to specify the “Times, Places, and Manner” of congressional elections, which includes regulations relating to registration. This does not prevent Arizona from using a state voter registration form with a proof of citizenship requirement or stop the state from denying registration based on information in its possession establishing ineligibility.

Arizona can also request that the U.S. Election Assistance Commission, which regulates the federal form, include a state-specific instruction for Arizona including the proof of citizenship requirement. Arizona could then sue the EAC under the Administrative Practice Act if the EAC refuses to include the instruction, claiming such a decision is arbitrary, particularly since the EAC approved a state-specific instruction for Louisiana requiring applicants without a driver’s licenses, ID card, or social security number to attach additional documentation to the completed federal form.

While the court was clear in stating that states cannot add further identification requirements to the federal forms, they also made clear that the same actions can be taken by state governments if they get the approval of the federal government and the federal courts.

Arizona can ask the federal government to include the extra documents as a state-specific requirement, Scalia said, and take any decision made by the government on that request back to court.  Other states have already done so.

•This case has nothing to do with Voter ID – Arizona’s voter ID is in place and was not before the court
•Arizona must “accept and use” the federal mail-in voter registration form specified by the National Voter Registration Act and its requirement that proof of citizenship be submitted with the federal form is preempted
•Arizona can require proof of citizenship with its state voter registration form.  Arizona can deny registration based on other information.
•Arizona can request that the U.S. Election Assistance Commission to include AZ language on the form regarding citizenship. If the EAC refuses to include the instruction, Arizona can sue the EAC, which ought to be interesting because it has become a zombie agency.

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