Reuters/Joshua Lott
In a 7-2 decision today, the Supreme Court found that Arizona’s proof of citizenship law for voter registration violated the National Voter Registration Act (NVRA). Somewhat surprisingly, Justice Scalia—who in February called the Voting Rights Act “a perpetuation of racial entitlement”—wrote the opinion for the majority, finding that federal law preempted state law in this case. “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,” wrote Scalia. “If this reading prevails, the Elections Clause requires that Arizona’s rule give way.” The ruling is a major victory for voting rights and an affirmation of the NVRA, which has helped 141 million Americans register to vote and turned twenty last month.
Justices Thomas and Alito dissented. Wrote Thomas: “The States, not the Federal Government, have the exclusive right to define the ‘Qualifications requisite for Electors,’ which includes the corresponding power to verify that those qualifications have been met.”
Here’s the background on Arizona v. The Inter Tribal Council of Arizona:
In 2004, Arizona voters approved Proposition 200, a stringent anti-immigration law that included provisions requiring proof of citizenship to register to vote and government-issued photo ID to cast a ballot. Last year, the US Court of Appeals for the Ninth Circuit blocked the proof of citizenship requirement, which it said violated the 1993 National Voter Registration Act. Under the NVRA, those using a federal form to register to vote must affirm, under penalty of perjury, that they are US citizens. Twenty-eight million people used that federal form to register to vote in 2008. Arizona’s law, the court concluded, violated the NVRA by requiring additional documentation, such as a driver’s license, birth certificate, passport or tribal forms. According to a 2006 study by the Brennan Center for Justice, at least 7 percent of eligible voters “do not have ready access to the documents needed to prove citizenship.”
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Prop 200 has had a chilling effect on voter registration in Arizona. “Following enactment of Proposition 200, over 31,000 individuals were rejected for voter registration in Arizona,” according to a brief by the Mexican American Legal Defense Fund (MALDEF). “Less than one-third of the rejected registrants subsequently successfully registered to vote.” The law has needlessly prevented eligible voters from registering and has made voter registration work more difficult. “The proportion of all voter registrations in [Phoenix’s] Maricopa County attributable to community-based drives decreased from 24% in 2004 to 7% in 2005, 5% in 2006 and 6% in 2007,” found MALDEF.
Prop 200 was aimed at curtailing illegal immigration but has harmed many legal Arizonians. Of the 31,500 citizens who were prevented from registering to vote, MALDEF found, “the record in the case demonstrates that the rejected…registrants were Democrats and Republicans in equal numbers, almost one-half were under the age of 30, and a majority of those who indicated a race said they were white.”
Supporters of Prop 200 claim the proof of citizenship requirement is needed to stop voter registration fraud. But as the appeals court found, “Arizona has not provided persuasive evidence that voter fraud in registration procedures is a significant problem in Arizona; moreover, the NVRA includes safeguards addressing voter fraud.” Adds Nina Perales, vice president of litigation at MALDEF: “Nobody has ever been prosecuted for using the federal form to register to vote as a non-citizen.”
The decision has broader significance for two reasons. Number one, Arizona had been the model for proof of citizenship laws more recently adopted in states like Alabama, Kansas and Tennessee. Today’s ruling could serve as a deterrent for states that are considering making it harder to register to vote.
Secondly, Scalia, who has often been skeptical of Congressional precedent, affirmed that Congress does, indeed, play an important role in determining the rules for federal elections. Does that mean the Supreme Court will uphold Section 5 of the Voting Rights Act in a decision this week or next? No. But it’s not a stretch to conclude that if the justices affirmed the power of the federal government with regards to Arizona, they should also pay great deference to a landmark civil rights law that has been overwhelmingly reauthorized four times by Congress and upheld by the Supreme Court every time it’s been challenged.
UPDATE: Rick Hasen, an election law expert at UC-Irvine, cautions against viewing the Arizona case as a clear victory for voting rights. “What the Supreme Court gave the federal government with one hand, it suggested could soon be taken away with the other,” he writes. “Justice Scalia drew a distinction between Congress’s broad power to set the manner of elections and its lack of power to set voter qualifications (such as residency requirements), which is an issue left to the states. The Court’s view of the ‘qualifications’ clause may give states new powers to resist federal government control over elections.”
But Jon Greenbaum, legal director for the Lawyers’ Committee for Civil Rights Under Law, an intervener in the case, strongly disagreed with that interpretation. “We knew before this decision that states set qualifications,” he says. “Arizona tried to make the argument that [the proof of citizenship law] was a qualification and a majority of the court rejected that argument…The case limits what states can do.”
Ari Berman writes about John Lewis and the long fight for voting rights.
