By Howard Fischer, Capitol Media Services
Arizona cannot require people to produce proof of citizenship before they register to vote, at least not for federal elections, a federal appellate court ruled Friday.
The 10th U.S. Circuit Court of Appeals said neither Arizona nor Kansas can demand that the federal Election Assistance Commission add a proof-of-citizenship requirement to the federal registration form the panel designed.
Justice Carlos Lucero, writing for the unanimous three-judge panel, said Alice Miller, the commission’s acting director, was within her rights to reject the request by Arizona Secretary of State Ken Bennett and Kris Kobach, his Kansas counterpart.
Lucero said the evidence shows there are other viable – and less burdensome – ways for states to ensure that people who are not citizens do not vote. He also said there was no “substantial evidence” that those in the country illegally were using the federal form to register or vote.
Friday’s ruling is a major setback for Arizona which has been trying for years to enforce a 2004 voter-approved measure mandating such proof.
How many people might be affected, though, remains unclear.
In Maricopa County alone, about 33,000 people signed up to vote using the federal form out of close to 2 million registered voters.
Karen Osborne, the county’s election director, said she managed to subsequently get citizenship proof from all but about 300 of these people. That enabled them to vote both on federal and state races; the remaining voters, put in a separate category of what became a “dual-track” voting system, could cast ballots only for candidates for federal offices.
But if Friday’s ruling is not overturned, voter registration groups are far more likely to sign people up with that federal form simply because they then do not have to also submit that citizenship proof, even if that means they can vote only for president and members of Congress.
The implications, though, may be even broader.
“The fact that we’ve won this now gives more solid ground to challenge this two classes of voters in Arizona,” said Sam Wercinski, executive director of the Arizona Advocacy Network, with one group that can vote in all races and the other limited to federal elections.
Elisabeth MacNamara, national president of the League of Women Voters, agreed it is questionable whether a dual-track system can survive a constitutional challenge.
Legal issues aside, she said voters may simply decide the costs of running two election systems – perhaps $200,000 for the August primary in Arizona for what turned out to be 21 voters – isn’t worth it, given the lack of evidence that illegal immigrants are trying to vote.
And if that dual-track system is voided, whether for legal or political reasons, then anyone who registers with a federal form, with or without proof of citizenship, could vote for any candidate for any office.
Bennett said this isn’t the last word.
“It’s headed back to the Supreme Court, one way or the other,” he said. And Bennett said he believes the high court will side with the state.
That outcome, however, is far from certain.
The last time Arizona sought high court review the justices told Bennett he should take his case to the Election Assistance Commission. And it was the decision by that commission – or, at least, its acting director – that Friday’s decision upheld.
The 2004 Proposition 200, part of a broader effort aimed at those not in the country legally, requires both proof of citizenship to register and identification when casting a ballot. Proponents said it would ensure that election results are not affected by those voting illegally.
Legal efforts to kill the latter requirement faltered and the ID provision remains on the books. And Arizona has been entitled since the 2004 vote to requirement documented proof of citizenship for those who use state-designed forms to register.
The legal fight stems from the fact that Congress, in approving the National Voting Registration Act, directed the Election Assistance Commission to design a single national voter-registration form to simplify the process. That form requires no proof of citizenship but only that those signing up swear, under penalty of perjury, that they are eligible to vote.
Last year the U.S. Supreme Court rejected Arizona’s attempt to enforce the proof-of-citizenship requirement on those using the federal form. The justices said, however, the state remains free to petition the commission to change its form.
But Miller, acting alone because all commission posts are vacant, refused. She said neither Arizona nor Kansas, which adopted a similar law last year, showed the need for additional documents to restrict voting only to citizens.
That theme was picked up by Lucero in Friday’s ruling.
“There are at least five alternate means available to the states to enforce their laws,” he wrote.
That list starts with the fact it is a crime to illegally register to vote and that non-citizens who vote can be deported. Other options include:
- Coordinating with the Motor Vehicle Division, as driver’s licenses are available only to those who can prove citizenship
- Comparing registration requests with responses to report for jury duty
- Using the federal government’s database of people who are not citizens but in this country legally
- Accessing a national database of birth records.
And Lucero said neither state has provided substantial evidence of those who are not citizens registering to vote using the federal form.
Nina Perales, an attorney with the Mexican American Legal Defense and Educational Fund, which challenged the law, said that conclusion is important in undermining the intent behind Proposition 200.
“Logic and the law prevailed over anti-immigrant race-baiting,” she said in a prepared comment.
Miller, in rejecting Arizona’s request earlier this year, said the raw numbers undermined the claim that citizenship proof was required of all who register.
“Arizona’s evidence at most suggests that 196 of 2,706,223 registered voters, approximately 0.007 percent, were unlawfully registered noncitizens around the time that Proposition 200 took effect,” she wrote at the time. And she said allowing Arizona to require proof citizenship at time of registration “would thwart organized voter registration programs” because people do not always carry documents that Arizona considers acceptable proof.