In a ruling that raises more questions that it resolves, the U.S. Supreme Court struck down Arizona’s proof-of-citizenship requirement for federal voter registration forms. In Arizona v. Inter Tribal Council of Arizona, Inc., a 7-2 majority determined that the National Voter Registration Act of 1993 preempts the state requirement. In the short term, this means that those who register to vote through a federal form only need to sign the form, swearing to be U.S. citizens. Georgia, Kansas and Alabama have proof-of-citizenship requirements identical to Arizona’s, which also seem to be negated now. But in reacting to the court’s decision, detractors of the nullified state requirement said they were still concerned about a back-door option created by the ruling. “What the Supreme Court gave the federal government with one hand, it suggested could soon be taken away with the other,” wrote Richard Hasen, a political science professor from the University of California, Irvine School of Law, in a Daily Beast column.* That’s because the ruling allows Arizona to ask the federal Election Assistance Commission to add proof-of-citizenship as part of the federal registration form; if the commission — which currently has no appointed commissioners — rejected the request, then the state could take that request to court.
In the majority opinion, Justice Antonin Scalia wrote that while the federal government could decide the time, place and manner of federal elections, it must defer to states on deciding who can vote. Thus, the opinion suggests that further litigation could lead to a favorable outcome for Arizona. In a written statement, Tom Horne, the Arizona attorney general, said the decision outlined “a clear path to victory” and that “Arizona should use it.”
“I just think the path forward for Arizona is not all that clear,” said Brenda Wright, vice president of legal strategies for Demos, a public policy nonprofit that helped file an amicus brief to the Supreme Court against the Arizona requirement. Wright said that the absence of sitting EAC commissioners does not automatically mean Arizona’s request for amending the federal form would be granted by court order. “There’s a long distance to get from here and there.”
In arguing for the proof-of-citizenship requirement before the court, Horne said the federal requirement for a signature verifying citizenship was “essentially an honor system. It does not do the job.” Justice Sonia Sotomayor responded, “Well, that’s what the Federal system decided was enough.”