This week, the Supreme Court heard argument in Arizona v. The Inter Tribal Council of Arizona, a case at the intersection of two lines of cases which have been prominent on the Court’s docket in recent years. The case is an example of a challenge to Arizona’s apparentlyendless cornucopia of anti-immigrant legislation. It also tests measures which, according to some conservatives, are designed to preserve the integrity of the ballot box, but according to others are calculated tosuppress the minority vote. The case involves Arizona’s Proposition 200, passed in 2004, which requires prospective Arizona voters to provide proof of United States citizenship before registration. But the federal National Voter Registration Act of 1993 directed the federal Election Assistance Commission to create a federal form for voter registration (current version here). That form requires applicants to provide a date of birth and other identifying information, and an oath that the applicant is a citizen, but does not require independent documentary proof of citizenship. Federal law requires states to “accept and use” the federal form. The critical question is whether “accept and use” means that a properly completed form is sufficient for voter registration unless the state independently proves that it is fraudulent, or, rather, that the form is the beginning of an application process during which the state may freely add supplemental requirements and inquiries.
A panel of the U.S. Court of Appeals for the Ninth Circuit, which included retired Justice O’Connor, invalidated Prop. 200’s proof-of-citizenship requirement, over a dissent by Chief Judge Kozinski. En banc, the Ninth Circuit held 9-2 that the requirement was invalid, this time with Chief Judge Kozinski in the majority. Both the panel and the court en banc Circuit upheld a separate provision of Prop. 200, requiring registered voters to show identification at the polls.
It is common ground that the federal government has broad power over federal elections. As the Brennan Center and the Constitutional Accountability Center wrote in a brief for me and other constitutional law scholars, under the Elections Clause (Article I, Section 4), Congress may regulate federal elections and supersede state electoral laws. The Framers recognized the national implications of state electoral improprieties, and granted the national government the power to protect itself. Neither Arizona nor any of the justices questioned the century of precedents to this effect. Instead, the case seemed to turn on the intent of Congress.
Evidence of congressional intent suggests that Prop. 200 is invalid. Chief Judge Kozinski’s en banc concurrence persuasively explained that Congress explicitly decided not to allow states to add their own requirements. When the bill was being considered, the Senate adopted an amendment allowing states to require documentary evidence of citizenship. The conference committee removed that language, because allowing states to add requirements “could effectively eliminate, or seriously interfere with, the mail registration program of the Act.” In spite of objections and efforts to recommit the bill, both houses passed the bill as recommended by the Conference Committee. Thus, as Judge Kozinski explained, not merely the statements of individual legislators or committees, but the actions of both houses make clear that Congress chose not to allow the states to add their own additional requirements.