Tuesday, October 26, 2010
A Ninth Circuit panel opinion today, with retired Justice Sandra Day O'Connor sitting by designation, has declared Arizona Proposition 200 regarding citizenship identification for voting, invalid as preempted. Judge Sandra Ikuta begins her opinion for the majority of the panel with this description:
Proposition 200 requires prospective voters in Arizona to present documentary proof of citizenship in order to register to vote, Ariz. Rev. Stat. §§ 16-152, 16-166, and requires registered voters to present proof of identification in order to cast a ballot at the polls, Ariz. Rev. Stat. § 16-159. This appeal raises the questions whether Proposition 200 violates the Voting Rights Act § 2, 42 U.S.C. § 1973, is unconstitutional under the Fourteenth or Twenty-fourth Amendments of the Constitution, or is void as inconsistent with the National Voter Registration Act (NVRA), 42 U.S.C. § 1973gg et seq. We hold that the NVRA supersedes Proposition 200’s voter registration procedures, and that Arizona’s documentary proof of citizenship requirement for registration is therefore invalid.
The panel considered the preemption doctrine under Election Clause preemption rather than under Supremacy Clause preemption: "Because the Elections Clause empowered Congress to enact the NVRA," the preemption analysis under that Clause is applicable." The panel derived its approach from two cases 120 years apart: Ex Parte Siebold, 100 U.S. 371 (1879) and Foster v. Love, 522 U.S. 67 (1997).
Reading Siebold and Foster together, we derive the following approach for considering whether federal enactments under the Elections Clause displace a state’s procedures for conducting federal elections. First, as suggested in Siebold, we consider the state and federal laws as if they comprise a single system of federal election procedures. If the state law complements the congressional procedural scheme, we treat it as if it were adopted by Congress as part of that scheme. If Congress addressed the same subject as the state law, we consider whether the federal act has superseded the state act, based on a natural reading of the two laws and viewing the federal act as if it were a subsequent enactment by the same legislature. With this approach in mind, we consider whether the NVRA and Proposition 200 operate harmoniously in a single procedural scheme for federal voter registration.
Opinion at 17643 (citations omitted). The panel concluded that the state law did not operate "harmoniously" with the NVRA.
Dissenting, Judge Alex Kozinski was highly critical of the majority, ending his own opinion by writing, "Few panels are able to upset quite so many apple carts all at once. Count me out." Dissenting Opinion at 17704. Kozinski's argument is that the panel has evaded the law of the Circuit and weakened the rules surrounding the law of the case. He argues that the panel is wrong not to take precedent seriously and wrong that the precedent it disregards was erronelously decided.