PASADENA, Calif. - A panel of 11 judges engaged in a lively debate with lawyers Tuesday over Arizona's effort to add its own requirements to a federal voter-registration law.
The judges lobbed questions at Arizona Attorney General Tom Horne, Washington-based Department of Justice lawyer Samuel Bagenstos and representatives of minority groups fighting Prop. 200. The 2004 voter-approved proposition requires that residents provide proof of citizenship when they register to vote in Arizona.
Bagenstos argued that the state is in conflict with a federal law designed to allow all voters to register with a simple postcard. The card constitutes proof that they are citizens when they sign under penalty of perjury.
Although the federal card may include driver's license and Social Security numbers as proof of eligibility to vote, Arizona seeks further documentation.
Attorney Jon Greenbaum, a civil-rights lawyer representing Indian tribes, said the added requirements could work against those who live on Indian reservations.
"The federal form was supposed to make registration simple," he said. "Members of Indian tribes are sometimes 90 miles away from a registration office where they could provide documentation."
Chief Judge Alex Kozinski interjected, "But not 90 miles away from a mailbox, right?"
Greenbaum replied that anyone on an Indian reservation should be able to mail in the postcard and simplify the process.
"Arizona is undermining that," he said.
Nina Perales of the Mexican-American Legal Defense and Educational Fund, representing a group of challengers to Prop. 200, said that at least 30,000 potential voters were excluded from voting because of the requirement and that there was no evidence they were not eligible to vote.
Horne was adamant in his argument that some non-citizens had been tricked into signing postcards by voter-registration organizations that sent people door to door to get forms signed.
He said it was not unreasonable to seek more documentation, saying, "You send it in an envelope and that is not overly burdensome."
Following the arguments, the court said it would take the matter under submission.
Lawyers on both sides said outside court that they believed it would be a split decision and whichever side loses will take the matter to the U.S. Supreme Court.
"The 9th Circuit is known as the most liberal circuit," Horne said. "Hopefully we'll be successful, but if we're not, we will certainly apply with the Supreme Court, which will be a much more conservative forum for us."
Greenbaum said he believes at least five of the justices were on his side. But he said several asked few questions, and it was hard to judge where they would fall.
"We made all the arguments we wanted to make," he said. Arizona was the first to require voters to show proof of citizenship, but Kansas and Georgia have followed suit in the past couple of years. An Appeals Court ruling would not impact the other states, but a Supreme Court ruling would.