June arrived with two election law cases at the Supreme Court. One is still pending: a highly anticipated decision on section 5 of the Voting Rights Act. The other, more frequently overlooked, was decided yesterday. And there are some quirks of the opinion that seem to depart from the swiftly congealing conventional wisdom that the states might actually have “won,” and now need only run out the clock. The case is called Arizona v. Inter Tribal Council of Arizona, Inc., but it has bounced through the courts under various names for seven years. In 2004, Arizona voters passed Prop 200, increasing identification requirements at the polls (one valid photo ID or two non-photo documents with name and current address) and requiring new voters to submit documentary proof of citizenship with a voter registration form.
There are policy reasons to question the merits of laws like these, whose costs can be larger than their benefits. Americans do not emerge from the womb with paperwork stamped on their skin, and as our Medicaid experience demonstrates, there are real individuals born in the country who do not have documentation of their citizenship readily available; the burdens on those people have to be assessed against the minimal fraud that such requirements incrementally deter, over and above prosecution and deportation. (Incidentally, it’s not unusual for popular initiatives to disproportionately burden a minority of residents; that’s a problem I’ve called to the Court’s attention in the also-still-pending Prop 8 case.) But today’s decision had little to do with those policy questions, or on the constitutional limits of that cost-benefit assessment.
Instead, yesterday’s decision was about a relatively narrow slice of the case: whether Arizona can require that voters submit documentary proof of citizenship in order to process a standardized federal voter registration form for federal elections, when Congress appeared to have said otherwise. The Court was not asked to discuss what Arizona can require for its own elections for state office, or what Arizona can require of individuals attempting to register using state paperwork. But in the 1993 NVRA (better known as “motor-voter”), in order to cut through a maze of state bureaucracy and provide simplified one-stop procedures for voter registration, Congress required that states like Arizona “accept and use” a federal voter registration form for elections to federal office, period. The court below, both in panel and en banc, found that this statute preempted Arizona’s requirement of additional documentation before accepting the federal form.
There were some intriguing aspects of the opinions below, ignored by the Court today. The panel opinion was written by a former clerk of Justice O’Connor, joined by Justice O’Connor herself, retired from the Court but picking up occasional cases. Chief Judge Kozinski, often seen as a leading conservative jurist, wrote an impassioned dissent, focused largely on the decision’s departure from an earlier panel decision in the case. En banc, Chief Judge Kozinski was able to reconsider the issue anew, and found the legislative history decisive in rejecting Arizona’s law. The Senate version of the NVRA explained that states could require citizenship documentation with the federal form; the House version did not. The conference committee specifically rejected the Senate version, explaining that the Senate provision was “not . . . consistent with the purposes of this Act” and “should be deleted”; both houses voted to adopt the conference bill, over strong dissent. That is, when asked directly whether the NVRA allowed states to require extra documentation, Congress said no.