At 10 a.m. Monday, the Supreme Court will hold one hour of oral argument on state power to require would-be voters to show proof of citizenship to register. Arguing for state and local officials in Arizona v. The Inter Tribal Council of Arizona (docket 12-71), will be Arizona Attorney General Thomas C. Horne, with thirty minutes of time. Arguing for the challengers will be Patricia A. Millett of the Washington office of the law firm of Akin Gump Strauss Hauer & Feld, with twenty minutes of time. Representing the federal government as amicus will be Deputy U.S. Solicitor General Sri Srinivasan, with ten minutes of time. With memories still fresh about widespread complaints in last year’s presidential election about efforts to tighten the requirements for voting, especially affecting minority voters, the Supreme Court takes up the constitutional puzzle — existing since the Founding era — over who controls election procedures. And in the background is the abiding partisan debate over whether such voter qualification rules are needed to combat election fraud, or are merely a cover for suppressing minority voting. The Supreme Court may not settle that political argument, but its coming ruling in the case of Arizona v. The Inter Tribal Council of Arizona could have a major influence on how elections for the presidency and for Congress are conducted in the future. And, of course, there could be a spillover effect for state and local elections, too.
This case goes back to the 2004 elections, when the voters of Arizona approved “Proposition 200″ and, among other effects, set off a courthouse battle that is still going on without a final ruling on the constitutionality of that ballot measure. Along the course of that legal battle, retired Justice Sandra Day O’Connor — sitting temporarily on a lower federal court — joined in a decision against the measure. (That was mere coincidence, and may count for little if anything with the current Justices.)
“Proposition 200″ has two key provisions, but only one of them is at issue before the Supreme Court. That provision requires local election officials to refuse to register any would-be voter who does not have “satisfactory evidence of United States citizenship.”
That requirement can be met with a state driver’s license, birth certificate, or a U.S. passport, provided each shows U.S. citizenship, or naturalization papers, or identification of membership in an Indian tribe. That is the provision nullified by the Ninth Circuit Court because it found a conflict with a federal voter registration law. (The other provision, not at issue, requires voters to have ID with them when they show up to vote on election day. The Circuit Court upheld that.)
The dispute has been before the Supreme Court once before, close to election day in 2006, when the Justices allowed Arizona to use the ballot measure provisions for the balloting that year (Purcell v. Gonzalez).
In an unsigned opinion at that time, the Court — without deciding the validity of “Proposition 200″ — cited the competing interests at stake: “Confidence in the integrity of our electoral processes is essential to the functioning of our participatory democracy. Voter fraud drives honest citizens out of the democratic process and breeds distrust of our government. Voters who fear their legitimate votes will be outweighed by fraudulent ones will feel disenfranchised. . . . Countering the state’s compelling interest in preventing voter fraud is the [challengers’] strong interest in exercising the fundamental political right to vote.” It suggested the “possibility that qualified voters might be turned away from the polls” because of the ballot measure.
As the case has continued to unfold in the federal courts, and now back in the Supreme Court, it has involved two issues, both of which have constitutional dimensions. First, what does the Constitution mean in giving the states the authority to decide “the time, place and manner” of holding elections for federal officials, but giving Congress back-up authority to “make or alter such regulations”? And, second, does Arizona’s U.S. proof-of-citizenship requirement conflict with a 1993 federal law, the National Voter Registration Act (the “motor voter” law), and is therefore unconstitutional because the federal law must prevail when the two clash?
In order to answer both questions, the Court has to sort out the roles of the national and state levels of government, at least when elections involve the choice of national officers: the president and members of the House and Senate.