Fair Elections Legal Network: 9th Circuit Rehears Oral Argument in Arizona Proof of Citizenship Case

By Mike Barfield, Fair Elections Legal Network

The 9th Circuit Court of Appeals today heard oral arguments in an en banc rehearing of Gonzalez v. Arizona. At issue is Proposition 200, passed by Arizona voters in 2004, which requires prospective voters to provide proof citizenship before they can successfully register to vote. The six forms of accepted ID are: (1) a state issued driver's license; (2) a U.S. birth certificate; (3) a U.S. passport; (4) a U.S. naturalization document; (5) another immigration document that proves citizenship; or, (6) a Bureau of Indian Affairs card number. In October, a three judge panel of the Ninth Circuit Court of Appeals ruled that Arizona’s requirement is invalid under the National Voter Registration Act of 1993 (NVRA).

Documentary proof of citizenship is an unnecessary burden on the right to vote. Thirteen million US citizens do not have access to citizenship documents and approximately one-third of all voting age women do not have access to citizenship documents. Each of these people could face disenfranchisement under laws like Proposition 200. Proponents of citizenship laws argue they are necessary to prevent fraudulent registration – but what for? The NVRA contains numerous, effective safeguards to ensure the integrity of elections. Persons who fraudulently register or register others to vote face criminal penalties for their actions. All prospective voters must sign a statement confirming citizenship under penalty of perjury in order to register to vote. And finally, even if non-citizens are willing to risk deportation or criminal and civil penalties by fraudulently registering, states may require registrants to appear at the polls the first time they vote in order to confirm their identity.

The three judge panel ruled that states cannot require additional documents when registering voters for federal elections because the NVRA requires states to “accept and use” the national registration form. Because Arizona does not separate registration for federal elections from registration for state elections, the requirement is effectively preempted for all voter registration.

However, the state of Arizona asked the court to reconsider its decision. Because two panels of the 9th Circuit had offered different opinions on whether Proposition 200 is unconstitutional, a rehearing en banc, or in other words, rehearing before eleven members of the Circuit – was granted.

The United States Department of Justice has joined the plaintiffs in the case for the en banc hearing. The DOJ agrees with the plaintiffs that the NVRA preempts any state from requiring additional documentation or information regarding citizenship beyond what is required on the federal registration form. Arizona disagrees with this position by arguing that the state does “accept and use” the federal form and that documentary proof of citizenship is simply required in order to assess the eligibility of a prospective voter.

Congress wrote in the NVRA that “the right of citizens of the United States to vote is a fundamental right [and] it is the duty of the Federal, State, and local governments to promote the exercise of that right.” Proposition 200 creates an unnecessary burden on that fundamental right and contrary to the spirit and letter of the NVRA. The 9th Circuit should protect the right to vote and strike down Proposition 200.

A recording of the oral argument will be available here no later than 3pm PST tomorrow.

The original article can be viewed here.