Arizona Advocacy Network

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Jesus Gonzalez worked as a farm laborer and factory hand in Arizona. He lived in the United States for more than four decades. Earning citizenship, along with the right to vote, was a dream.

So he couldn’t believe it when, after finally taking the citizenship oath at the Yuma federal courthouse in 2005 and filling out his election paperwork, he received two notices from the state that his voter registration had been denied.

“I was angry,” he would later tell a court. “After all of my hardship and struggles to finally become a U.S. citizen, I was still treated like a second-class citizen of this country. ... We should all have an equal right to elect the people who make the decisions in our country. I want to have a voice in the United States.”

An Arizona law that has inflamed passions on both sides of the immigration debate heads to the U.S. Supreme Court for oral arguments Monday. It could affect not just the sanctity of elections, but the fundamental right to vote.

The measure — approved by Arizona voters a year before Gonzalez became a citizen — aims to keep ballots out of the hands of illegal immigrants. Anyone registering to vote must provide documentation of U.S. citizenship.

In Arizona vs. The Inter Tribal Council of Arizona Inc., the Supreme Court will decide whether the state can require proof of citizenship in all cases of voter registration, or just some. Courts already have allowed the state to demand proof of citizenship with state voter-registration forms. Now, the justices will consider whether the state can also impose such requirements on federal voter-registration forms.

A decision is expected this summer.

Opponents claim that under the law, thousands of eligible Arizona voters — in particular the young, the elderly, minorities and naturalized citizens such as the now 63-year-old Gonzalez — are prevented, or at least delayed, from registering to vote. Supporters, including those in other states that have adopted, or considered, similar measures, contend that enforcing the law is Arizona’s right in order to protect the integrity of the electoral process.

The case is the second election-law dispute before the court Supreme Court in less than four weeks. Arizona has a stake in both. Alabama’s challenge on Feb. 27 to the landmark Voting Rights Act, which could free Arizona and other states from three decades of scrutiny by the Department of Justice over racial discrimination in election procedures, drew more national attention.

But experts and parties to Arizona’s lawsuit say this case, too, could set precedent in how elections are conducted across the country.

Arizona argues that its constitutional election powers supersede those of Congress when it comes to verifying who is eligible to vote. The state says its law requiring proof of citizenship with voter registrations should take precedence no matter what.

The case spotlights the tension between protecting election integrity — which Arizona argues its law does — and encouraging wider voter participation, which Congress sought to do with a simple, nationwide federal registration form that requires only a signature — under penalty of perjury — to confirm citizenship.

“This is about a state imposing restrictions that make voter registration more difficult. Whether it’s justified or not, it puts an additional hurdle in the way of the process,” said Justin Levitt, an elections-law expert at Yale and Loyola law schools. “This case is about how smooth voter registration can be.”

If the Supreme Court sides with Arizona, critics say, thousands of Arizonans could be prevented unnecessarily from registering to vote. If the Supreme Court sides with opponents of the law, Arizona elections could become more complicated. Lower-court decisions caused confusion in the most recent election, when the state was forced to treat state and federal voter-registration forms differently.

Opponents of Arizona’s law say Gonzalez’s story exemplifies the need to overturn it.

Though Gonzalez is a citizen, mix-ups in the information the state asked for to prove his legal status hindered his registration and caused him to give up. He later sued, along with Native American, Latino, voter-registration and civil-rights groups.

Dual election process

Arizona’s law, which Republican Attorney General Tom Horne will defend before the high court, was approved by voters overwhelmingly in 2004. The ballot initiative known as Proposition 200 was designed to combat illegal immigration.

Under the law, Arizona voters must show identification at the polls, and county recorders must reject any voter-registration form that lacks documentary proof of citizenship — which can include a copy of a driver’s license issued after 1996,a passport, birth certificate, naturalization number or tribal card.

As the case wound through the legal system, lower courts agreed that the state can require voters to present ID on Election Day.

But a divided 9th U.S. Circuit Court of Appeals said last year that while Arizona could demand proof of citizenship for state voter-registration forms, it could not do so for the federal voter-registration form created by Congress in 1993 as part of the National Voter Registration Act. Both forms are used to register voters in Arizona.

The ruling set up an unusual situation in the 2012 presidential election cycle.

Election officials across Arizona required proof of citizenship for some voters but not others, depending on whether they registered using the state or federal form. Election workers had to be trained in the dual system. And it forced some voters to cast provisional ballots, which are held aside and counted only after they are verified. Several races weren’t decided for days as election workers counted thousands of provisional ballots.

“It caused a great confusion out there, because you could have two people coming in and if they grabbed the state form, you told them, ‘You have to fill it out completely.’ Yet if they picked up the national form, even if some information was missing, we had to take it,” Pima County Recorder F. Ann Rodriguez, a Democrat, told The Arizona Republic. “I told Attorney General Tom Horne, ‘This is what you get for having a bunch of damn lawyers arguing a point who don’t understand our process. ... Tell us to do all A, or all B.’”

The confusion could continue. If opponents of the law win, the most extreme ramification could be that conservative state lawmakers, seeking to continue proof-of- citizenship requirements for state and local elections, set in stone a complicated dual-election system.

In that case, voters who register on the state form using citizenship documentation could be allowed to vote in all races — for local, state and federal offices. But voters who use the federal form and don’t show documentation might be restricted to only federal elections — that is, for Congress and president.

Federal-form voters might walk into their polling place, look at their ballots and wonder why they see no box, for example, to choose their mayor. 

On the other hand, if the state prevails, Arizonans registering to vote might continue to be confused — or hampered — by having to show proof of citizenship.

A Native American woman born at home on the reservation and a grandmother born in 1910, before her state began issuing birth records, for instance, testified that they lacked birth certificates required to register to vote. And groups that conduct voter-registration drives said it was difficult to sign up new voters, like college students, who lacked the right documentation or didn’t have it with them.

Sam Wercinski, executive director of the Arizona Advocacy Network,one of the lawsuit’s plaintiffs, said far more eligible Arizona voters are rejected under Arizona’s law than the number of non-citizens caught illegally registering to vote.

“Let’s have the scales of justice put out here. Which way are they going to tilt? Who’s being affected more?” he said.

Voter fraud among issues

Supporters of Arizona’s law are hoping the Supreme Court case will finally muzzle the opposition.

“This is a big moment,” said Randy Pullen,architect of the 2004 campaign for the law and a former chairman of the Arizona Republican Party. “That’s why we put it on the ballot to begin with. We hoped that it would become the cornerstone ... and set a precedent to allow states to do similar things.”

Four states — Georgia, Alabama, Kansas and Tennessee — have passed similar laws requiring proof of citizenship for voter registration, and at least 12 have considered it.

“That law basically changed the entire immigration debate in the country. It did exactly what we wanted it to do,” Pullen said.

He believes the court should uphold Arizona’s tougher voter-registration requirements because lower courts have found the potential harm to voters did not outweigh the state’s need to protect election integrity.

Horne argues that election fraud would go unchecked without the proof-of-citizenship law. The state’s lawsuit also includes Arizona Secretary of State Ken Bennett and 13 of the state’s 15 counties.

The federal form is “an honor system that has no real protection,” said Horne. “Someone who is willing to vote fraudulently would be willing to sign falsely. ... Particularly in a state that is on the (U.S.-Mexican) border ... we need information to confirm (that people registering to vote) are in fact citizens.”

County prosecutors have few resources to go after election fraud, Horne said. Under the law, he said, election officials can catch fraud before it occurs. And that’s a precaution the state has the authority to impose, he said.

Arizona has charged or prosecuted 19 non-citizens for illegally registering to vote since the law took effect in 2005 and kicked more than 200 off the voter rolls after they marked that they were non-citizens on jury-duty forms, according to state election officials. Some violators said they didn’t know they shouldn’t register, and critics have questioned whether actual citizens checked the non-citizen box just to get out of jury duty.

But if Arizona fails to prevent non-citizens from voting, eligible voters could decline to participate in elections, losing trust in the election system, Horne said. And close elections could be determined by a small number of fraudulent ballots, Horne says.

“If everybody knows it’s easy to cheat the system, it diminishes their view of the system,” he said. In passing Proposition 200, “Arizona acted reasonably.”

Court’s possible ruling

The case sets up a “state’s rights” challenge to Congress’ election authority.

Voting-rights advocates, who have been contesting the law almost since it was passed, argue that Arizona’s requirements add barriers to voter registration that Congress intended to prevent. The federal form created through the National Voter Registration Act was meant to be accepted by all states as an easy way to register.

Bob Kengle, an attorney who represents several plaintiffs through the Washington, D.C.-based Lawyers’ Committee for Civil Rights Under Law, said Congress settled the question of whether people should be required to show citizenship documents as part of the federal voter-registration process.

Members of Congress deleted that requirement in the bill, saying it would “seriously interfere” with the ease of mail voter registration.

But “the legislative history makes clear Congress was very aware of protecting against voter fraud,” Kengle said. “It’s like baseball and apple pie. Nobody will argue elections should lack integrity.”

So Congress established federal criminal penalties for intentionally registering falsely, required the federal voter-registration form to display clear instructions not to register as a non-citizen and made voters sign under oath.

That should be sufficient, Kengle said. “The state thinks it has a better idea.”

Daniel Tokaji, an Ohio State University election-law expert, believes the case against Arizona’s law is nearly iron-clad.

“There is precious little evidence of voter fraud,” Tokaji said. “If you’re not a citizen, you’d have to be crazy or ignorant of the law to go vote, because you’re taking a huge risk for relatively little benefit. You could go to jail, lose any chance you have of gaining citizenship or even be risking deportation. Why would you take the chance of illegally voting?”

“In my view,” Tokaji said, “this will be very hard for Arizona to win.”

Levitt, the Yale elections-law expert, added that the Supreme Court is unlikely to rule Arizona’s election power supersedes the federal government, government’s, which could undermine the Constitution and threaten a host of federal election laws.

Attorneys from the Department of Justice have also weighed in against Arizona’s law, arguing that Congress’ power holds sway.

But Horne argues that Arizona’s law does not conflict with Congress’ election powers. The state’s responsibility is verifying the eligibility of voters, he says.

When Arizona demands proof of citizenship with a voter-registration form, Horne says, it’s like an airline requiring identification to confirm a traveler’s ticket to board a plane. The airline isn’t rejecting the ticket, rather it’s verifying that the ticket belongs to the traveler.

Tokaji remains skeptical that Arizona’s law could be duplicated around the country. These days, Republicans don’t need the political fight, he said.

“This perceived immigrant bashing has had a negative effect on the Republican Party’s electoral prospects,” Tokaji said. “The last thing the Republican Party wants to do right now is to alienate Latino and, to a lesser extent, Asian- American, voters in the way voter- identification laws tend to do.”

But Pullen, the law’s campaign architect, remains confident Arizona will win.

“It’s almost like if you have to lift one finger to register to vote, that somehow that’s wrong,” he said. “I think most Americans would reject that argument.”

Gonzalez says he is hopeful would-be voters in Arizona will have an easier path to the ballot box.

“As U.S. citizens, we should all have the same rights, despite our country of origin,” he told a federal judge. “I have paid taxes all my life, and have contributed to this country. I want to vote. I want to exercise this right because I feel that it is the best method to improve the lives of people in the United States, particularly Latino people.

“I hope that the law that I am challenging in Arizona will not be in effect in the future