(CN) – Arizona cannot require proof of citizenship to register voters, a majority of the full 9th Circuit ruled Tuesday.
Though the divided panel in Pasadena struck down the registration element of Proposition 200, which Arizona voters passed in 2004, it upheld an element of the law that requires voters to show proof of citizenship at the polls.
Requiring proof of citizenship to register to vote violates the intended purpose of the National Voter Registration Act (NVRA)of 1993, according to the majority.
“Proposition 200’s registration provision directs county recorders to assess an applicant’s eligibility based on proof of citizenship information that is not requested on the federal form, and to reject all federal forms that are submitted without such proof,” Judge Sandra Ikuta wrote for the court, referring to the National Mail Voter Registration Form. “Rejecting the federal form because the applicant failed to include information that is not required by that form is contrary to the form’s intended use and purpose.”
“The NVRA and Proposition 200’s registration provision, when interpreted naturally, do not operate harmoniously as a single procedural scheme for the registration of voters for federal elections,” Ikuta added. “Therefore, under Congress’s expansive Elections Clause power, we must hold that the registration provision, when applied to the federal form, is preempted by the NVRA.”
A number of groups and individuals, including the Inter Tribal Council of Arizona, League of Women Voters, The League of United Latin American Citizens Arizona and the Hopi Tribe, sued the state and its various county recorders for an injunction shortly after Prop. 200 passed. They claimed that the registration portion of the law violated the NVRA, and that the polling-place provision amounted to an unconstitutional poll tax, violating the equal protection clause and the 14th Amendment.
Chief U.S. District Judge Roslyn Silver in Phoenix ruled for the state on all claims after the initial motion for a preliminary injunction made it to the U.S. Supreme Court and back.
Two of the plaintiffs appealed to the 9th Circuit, where a three-judge panel upheld the polling-place provision but found that the NVRA superseded the registration provision. After agreeing to rehear the issue en banc, the court handed down a similar ruling Tuesday.
“We are elated,” said Washington, D.C.-based attorney Jon Greenbaum, who argued the case for the Inter Tribal Council of Arizona and other plaintiffs.
“The bottom line is that the court found that Prop. 200 violated the National Voter Act of 1993,” Greenbaum, who is with the Lawyers’ Committee for Civil Rights Under Law, told Courthouse News. “It is going to get easier for our clients to vote, and easier for organizations that do voter registration, because now they won’t have to worry about submitting a proof of citizenship with the form.”
“Now you can do a meaningful voter registration drive in Arizona,” he said.
Arizona Attorney General Thomas Horne, who argued the case for the state, said that he expects the registration issue to go to the Supreme Court.
“The court upheld the requirement that persons wishing to vote must show identification at the polling place,” Horne’s office said in an email. “The part we will have to appeal is dealing with registration. We always expected the U.S. Supreme Court to have to decide this one. The people of Arizona have a right to request that people registering to vote show some evidence they are citizens and we fully expect the U.S. Supreme Court to uphold that.”
Though the majority cited a lack of evidence that discrimination would follow proof-of-citizenship requirements at the polling place, Judge Harry Pregerson disagreed.
“A thorough review of the record reveals that Proposition 200’s polling place provision has a significant disproportionate impact on Latino voters,” Pregerson’s partial dissent states. “In the 2006 general election, Latino voters comprised between 2.6 percent and 4.2 percent of the voters who turned out to vote, but Latino voters cast 10.3 percent of the ballots that went uncounted because of insufficient identification. Latino voters were overrepresented by 200 percent to 500 percent in ballots that were uncounted because of insufficient identification.”
Another partial dissent authored by Judge Johnnie Rawlinson found “no conflict between the NVRA and Arizona’s proof-of-citizenship requirement.”
“In fact, the plain text of the NVRA validates Arizona’s proof-of-citizenship requirement, even while recognizing that Arizona must ‘accept and use’ the federal form.” he wrote. “The majority’s view makes voter registration burdensome for states. For example, an Arizona applicant meeting the federal form requirements, but lacking proof-of-citizenship, would have to be allowed to vote for federal officials but could not vote for state officials. States that desire a proof-of-citizenship requirement in their state forms (as the majority suggests is allowed by the NVRA), would be forced to track whether their residents are registered to vote for federal elections, state elections, or both. In essence, the majority’s alteration of the statute imposes an unnecessary burden on the states” (Parentheses in original.)