Ninth Circuit: Arizona Proof-of-Citizenship for Registration Unconstitutional

The en banc Ninth Circuit this week in Gonzalez v. Arizona overturned Arizona's requirement that prospective voters in Arizona provide proof of U.S. citizenship in order to register.  But the court also upheld the state's requirement that registered voters show ID to cast a ballot at the polls.

The case is the latest ruling on Arizona's many attempts to clamp down on illegal immigration--just a week before the Supreme Court will hear arguments on Wednesday on S.B. 1070.  It's also the latest ruling on the many attempts in the states to tighten registration and voting requirements.  The case suggests that states may face difficulties in tightening registration requirements for federal elections, even if they have flexibility in enacting voter ID laws at the polls.  (The Supreme Court rejected a Fourteenth Amendment Equal Protection challenge to Indiana's voter ID law in 2008 in Crawford v. Marion County.  Under Crawford, voter ID laws are subject merely to a balancing test--at least unless plaintiffs can show that a particular voter ID law creates a much more significant barrier to voting than the plaintiffs demonstrated in Crawford.)

The Ninth Circuit ruled that Arizona's registration provision conflicted with the National Voter Registration Act of 1993, and that the NVRA superceded Arizona's registration provision.  The NVRA prescribes three ways that states can register voters for federal elections: application with an application for a driver's license; mail application using a federal form designed by the Eelection Assistance Commission; and in-person registration.  The NVRA also requires states to create a combined driver's license and voter registration form, and it delegates to the EAC the creation of a nationally uniform Federal Form for mail and in-person registration for federal elections.  (The key language: the NVRA says that states must "accept and use" the Federal Form developed by the EAC.)  States may (but are not required to) create their own forms for federal elections, so long as those forms meet NVRA criteria.  (State forms do not replace the Federal Form; the Federal Form is still required.)

The NVRA says that the Federal Form "may require only such identifying information . . . as is necessary to enable the [state] to assess the eligibility of the applicant."  It also says that the Federal Form must include an "attestation that the applicant meets [citizenship requirements]."  Under the NVRA, the EAC created a Federal Form that asks "Are you a ctiizen of the United States of America?"  The Form says that an applicant should not complete the form if he or she answered no.

While neither the NVRA nor the EAC Federal Form requires proof of citizenship (beyond the attestation), Arizona's Proposition 200 does.  It says that "[t]he county recorder shall reject any application for registration that is not accompanied by satisfactory evidence of United States citizenship."  (Arizona's requirement applies to both the Federal Form and to the state form.  The EAC earlier rejected Arizona's proposal to modify the Federal Form consistent with Prop 200.)  Arizona's Prop 200 thus goes beyond and adds to the requirements of the NVRA and the EAC Federal Form.

The court ruled that the additional ID requirement in Arizona's Prop 200 conflicted with the NVRA and the EAC Federal Form.  It sais that the NVRA doesn't give states room to add to the Federal Form--exactly what Prop 200 sought to do.  And because Congress enacted the NVRA under the Elections Clause, the NVRA trumps Arizona's law.  The Elections Clause says that "[t]he Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators."  The court ruled that a valid enactment under the Elections Clause, like the NVRA, preempts conflicting state law, with no presumption against preemption (as in more traditional preemption cases, under the Supremacy Clause, because the Elections Clause does not require the same kind of balancing of federalism concerns). 

But while the court ruled the registration provision unconstitutional, it upheld the voter ID provision against challenges under Section 2 of the Voting Rights Act, the 24th Amendment, and the Fourteenth Amendment Equal Protection Clause.  As to the Section 2 challenge, the court said that the plaintiffs failed to produce evidence showing that "Latinos' ability or inability to obtain or possess identification for voting purposes . . . resulted in Latinos having less opportunity to participate in the political process and to elect representatives of their choice."  As to the constitutional challenges, the court applied a Crawford-like balancing analysis and upheld the law.

Chief Judge Kozinski wrote in concurrence that "this is a difficult and perplexing case," and that the "statutory language we must apply is readily susceptible to the interpretation of the majority, but also that of the dissent."  He concurred in full, even though he dissented in the prior three-judge panel.  (He explains why on page 4196.)

Judge Berzon, joined by Judge Murguia, concurred but suggested that the plaintiffs could make out a Section 2 case against voter ID, but that under the current record they didn't.

Judge Pregerson concurred and wrote that the plaintiffs did make out a Section 2 case against voter ID.

Judge Rawlinson, joined by Judge Smith, concurred on voter ID, but dissented on the registration requirement.

SDS