The state of Arizona passed Proposition 200 by popular referendum. Proposition 200 requires that a person must present proof of citizenship when registering to vote and a voter must present identification when casting a ballot. Multiple parties sued the state of Arizona, arguing that Congress had preempted the states in this area of election law with the National Voter Registration Act. While the Ninth Circuit ruled that the National Voter Registration Act superseded the registration requirement, the court also held that the identification requirement at a polling place is legal. Arizona is now appealing the registration requirement to the Supreme Court, arguing that this falls within their powers and the lower courts are taking a broader view of preemption that is not in line with the past rulings of the Supreme Court. The outcome of this case will play a large role in the ability of the states to pass laws governing voter registration, and the Court’s evaluation of preemption will likely have a large effect on the balance of power between the states and federal government.
Questions as Framed for the Court by the Parties
Did the court of appeals err 1) in creating a new, heightened preemption test under Article I, Section 4, Clause 1 of the U.S. Constitution ("the Elections Clause") that is contrary to this Court's authority and conflicts with other circuit court decisions, and 2) in holding that under that test the National Voter Registration Act preempts an Arizona law that requests persons who are registering to vote to show evidence that they are eligible to vote?
Does the National Voter Registration Act preempt state law to the level that lower courts should afford Congress greater deference under the Elections Clause?
Arizona voters passed a state initiative, Proposition 200, on November 2, 2004. Proposition 200 requires prospective voters in Arizona to present proof of citizenship when registering to vote and also requires identification when a voter goes to cast a ballot in the state of Arizona. Proposition 200 amended Arizona's voter registration procedure by requiring the County Recorder to reject any voter application that does not include valid proof of one's U.S. citizenship. Proposition 200 amended Arizona's polling place procedures by requiring certain forms of identification to prove identity when a voter attempts to cast a ballot.
Multiple plaintiffs filed separate suits opposing Arizona's implementation of Proposition 200. The United States District Court for the District of Arizona consolidated these cases and denied Jesus Gonzalez and Inter Tribal Council of Arizona's (“ITCA”) claim for an injunction. ITCA appealed to the United States Court of Appeals for the Ninth Circuit, requesting an emergency interlocutory injunction to prevent Arizona from implementing Proposition 200 during the 2006 elections. Arizona petitioned the Supreme Court for certiorari and the Supreme Court lifted the injunction and remanded the case to the Ninth Circuit.
On remand, ITCA only sought an injunction for the registration requirement under Proposition 200. The Ninth Circuit denied the injunction, holding that the registration requirement was not an unconstitutional poll tax and was not made obsolete by the National Voter Registration Act of 1993 (“NVRA”). The case was remanded to the district court, which held that the requirement of identification at the polling place was not a poll tax under the Twenty-fourth Amendment and the registration requirement did not conflict with the NVRA.
ITCA appealed the District Court's claims under the Twenty-fourth Amendment and the NVRA. ITCA also challenged the District Court's holding that it was not a poll tax under the Fourteenth Amendment and Gonzalez challenged the District Court's decision under the Voting Rights Act (“VRA”) and Equal Protection Clause. A three-judge panel of the Ninth Circuit held that polling place requirement did not violate the VRA, the Fourteenth or the Twenty-fourth Amendments, but that the registration requirement was superseded by the NVRA.
A majority of the active judges on the Ninth Circuit decided to hear the case en banc. The full court held the same way as the three-judge panel had previously ruled. On October 15, 2012, the Supreme Court of the United States granted Arizona's petition for certiorari with regards to the registration requirement and will hear the case on March 18, 2013.
The parties dispute whether a state law requiring proof of United States' citizenship is preempted by the National Voter Registration Act of 1993 (“NVRA”). Arizona argues that the Ninth Circuit was wrong in finding that Congress preempted Arizona through the NVRA because the NVRA does not directly conflict with the requirement under Proposition 200. ITCA and Gonzalez contend that Proposition 200's language comes in clear conflict with the language of NVRA and as such, the NVRA preempts Proposition 200.
Several states contend that if the Supreme Court upholds preemption by the NVRA, the delicate balance between state and federal power will swing in favor of the federal government. These states argue that if preemption is upheld, not only will many states have to change their election registration laws, but other state laws will likely be preempted as a result of the new broader preemption test. Further, the states suggest that if the NVRA preemption is upheld, it could create two different sets of laws for elections: One set of laws based on federal guidelines for federal elections and another set of laws based on state guidelines for state elections.
The United States argues that the Constitution grants the federal government power to make laws pertaining to federal elections, and any time federal and state election law differ, the federal law must preempt the state law. The United States also contends that if Arizona is allowed to set these registration requirements, the entire federal form registration would be in jeopardy. Some members of Congress also argue that they have created a national registration system to create harsh voting laws by the states, and to allow Proposition to stand would undermine Congress’ efforts to allow all citizens an equal opportunity to vote.
The American Civil Rights Union (“ACRU”) argues that Arizona's law is meant as a way to ensure that only eligible voters are allowed to vote. ACRU suggests that the possibility of integrity in fair elections will be lost if Arizona is unable to require proof of United States' citizenship before voting. Further, the Landmark Legal Foundation (“LLF”) contends that voter registration cards help illegal immigrants establish their identity, which is important when applying for jobs and a driver's license. The LLF suggests that Arizona is a state with one of the largest risks from illegal immigrants receiving voter registration cards as it is a state with one of the highest populations of illegal immigrants. The LLF argues that by not requiring proof of citizenship, the votes of legal citizens will be diluted by the votes of illegal immigrants and election results will no longer represent the true wishes of the citizens of the United States. The Center for Constitutional Jurisprudence argues that if Proposition 200 is struck down, states will have no means to protect non-citizens from voting in federal elections and the goal of a fair election only for citizens will be lost.
The National Association for the Advancement of Colored People ("NAACP") argues that the NVRA was passed as a response to state laws that attempted to prevent blacks and other minorities from voting. The NAACP suggests that Proposition 200 is another attempt to prevent minority groups from voting and is a means by the states to overturn the work that has been done to franchise minority voters. The NAACP suggests that if Proposition 200 is upheld, it will simply be a modern law that looks to disenfranchise Latino and take a step back for civil rights. Community voter registration groups argue that many voters only register because of voter registration drives and Proposition 200 inhibits the ease of registering at these drives because people often do not carry the necessary documentation on their persons and it is costly for organizers to carry portable photocopiers. The Overseas Vote Foundation (“OVF”) argues that service members and civilians overseas are particularly at risk under Proposition 200 because these groups may not often have the necessary documentation with them overseas or a secure method to transmit copies to Arizona. The OVF also contends that out-of-state students attending college in Arizona will be at risk because most will not have an Arizona driver’s license or have their passport or birth certificate with them while they are at school.
The result of this decision will affect how states interpret and apply federal election law. Currently, the federally enacted National Voter Registration Act ("NVRA") requires that Arizona “accept and use” the Federal Form. The Federal Form is a document that U.S. Citizens must fill out and submit to a designated state official in order to register to vote. Arizona’s Proposition 200 requires election officials, additionally, to verify the eligibility of registrants with proof of citizenship. The parties dispute whether Arizona’s Proposition 200 fulfills the NVRA’s “accept and use” requirement. Namely, the parties disagree whether the NVRA and Proposition 200’s proof of citizenship requirement are in conflict and if so, whether the NVRA should preempt Proposition 200. Petitioners argue that Proposition 200 should be analyzed under the Supremacy Clause while Respondents argue that it should be analyzed under the Elections Clause.
Appropriate Preemption Test Under the Elections Clause
Arizona argues that the Ninth Circuit incorrectly interpreted preemption principles under the Elections Clause. Arizona argues that the question of preemption should be addressed by a Supremacy Clause analysis, which asks if the two policies in question directly conflict. Arizona claims that the Ninth Circuit improperly applied an Elections Clause analysis, which asks if the state law at question works harmoniously with current federal procedures. Arizona argues that this Elections clause analysis is a more stringent test, which is not applicable in this context. Arizona contends that, in this type of situation, federal circuits have traditionally analyzed preemption considerations under the Supremacy Clause. Arizona contends that if the court had applied the proper test, which requires actual conflict between the two regulations, the court would not have found a conflict.
In response, the Inter Tribal Council of Arizona (“ITCA”) argues that the court properly applied an Elections clause, rather than Supremacy Clause, analysis to determine whether the NVRA supersedes Proposition 200’s proof of citizenship requirement. The ITCA argues that an Elections clause analysis is more appropriate because the founding fathers envisioned a unified election system where state and federal laws worked harmoniously. The ITCA contends that Arizona improperly analyzes the issue under the Supremacy Clause, asserting that their proposed test seeks to consider state supremacy concerns. The ITCA claims that state concerns over federal overreaching are unnecessary in this context because the basis of the conflict is a federal elections issue. The ITCA states that the Court has never considered Supremacy Clause principles when addressing election regulations.
Preemption Analysis of Proposition 200 under the National Voter Registration Act
Arizona contends that a preemption analysis is unnecessary because the NVRA’s requirement that states “accept and use” the Federal Form does not conflict with Proposition 200’s proof of citizenship requirement because officials can follow both procedures. Arizona argues that they comply with the NVRA’s requirement that they “accept and use” the Federal Form because all Arizona election officials require the form as a part of voter registration. Arizona contends that the NVRA does not prohibit states from requiring that individuals present proof of citizenship in addition to the Federal Form. Arizona claims that since Congress has not specifically prohibited the states from requesting additional proof of citizenship, Arizona is simply supplementing the federal verification procedures.
The County Recorders and Election Directors support Arizona’s position by arguing that election officials have the power and the duty to keep complete voter registration records in order to verify that voters are eligible to vote. The Recorders and Election Directors further argue that states are required to enact laws to prevent voter fraud in order to protect the validity of elections. The Recorders and Election Directors contend that Proposition 200 is consistent with NVRA regulations intended to reduce obstacles to voting, because they only act to verify voter eligibility and they are not overly burdensome. The Recorders and Election Directors argue that because of this, the NVRA and Proposition 200 do not conflict. The Recorders and Election Directors argue that the NVRA only prohibits them from requiring formal authentication, such as notarization, of voter forms. The Recorders and Election Directors state that the NVRA does not prohibit them from requesting supplemental information, such as proof of citizenship. As a result, the Recorders and Election Directors contend that Proposition 200’s proof of citizenship requirement complies with Federal regulations.
In response, the ITCA claims that, when properly analyzed under the Elections Clause, Proposition 200 directly conflicts with the NVRA and federal law supersedes the proposition. The ITCA argues that Arizona does not appropriately use the Federal Form because it requires a supplemental procedure to verify proof of citizenship. The ITCA supports this by pointing to the Federal Form requirement that an individual swear their citizenship under penalty of perjury and verify this with their signature. The ITCA claims that because the NVRA specifically dictates how citizenship is verified, states may not add a requirement for verification of citizenship for federal elections.
Gonzalez supports the ITCA, arguing that Arizona’s policy directly conflicts with the NVRA “accept and use” requirement because Proposition 200 states that Arizona election officials may not use Federal Forms that do not rise to the verification procedures outlined therein. Gonzalez argues that because of their policy to decline voter registrations that do not include citizenship verification, Arizona does not “accept and use” the Federal Form as required by the NVRA. Gonzales further contends that where a state’s voting policy, such as Arizona’s Proposition 200, conflicts with the NVRA, the state’s policy is automatically preempted. Gonzalez argues that this interpretation of the Elections Clause is consistent among the circuit courts and should be upheld in this case.
Congressional Intent Surrounding Regulation of Federal Elections
Arizona argues that the Court should uphold Proposition 200 because requiring proof of citizenship supports Congressional intent in protecting the integrity of elections. Arizona contends that voter fraud is a problem in Arizona and poses a significant threat to the validity of elections in the state. Arizona further supports Proposition 200’s citizenship verification requirement by stating that the additional requirement to provide proof of citizenship did not pose a substantial burden to potential voters attempting to register. The Country Recorders and Election Directors support Arizona by arguing that Proposition 200 is necessary to ensure voter confidence in the validity of the election outcomes. They further argue that this voter confidence is necessary to ensure full realization of the democratic process.
Arizona also argues that the Court should not find Proposition 200 preempted by the NVRA in order to avoid a constitutional question on the NVRA. Arizona contends that if Proposition 200 is interpreted to be preempted by the NVRA, it would unconstitutionally restrict Arizona’s power to enforce laws that verify voter qualifications in Federal Elections. Arizona supports this by pointing out that the Elections Clause specifically designates that the states have the exclusive power to enact laws that verify voter qualifications.
Gonzalez contends that the court’s interpretation that the NVRA preempts Proposition 200 is not unconstitutional because voter registration is different from substantive verification of citizenship. The ITCA supports Gonzalez’s argument by contending that NVRA’s suppression of Proposition 200’s citizenship verification is constitutional because the Elections Clause authorizes Congress to determine how federal voters are registered. The ITCA claims that this interpretation is supported by both Congressional intent in enacting the NVRA and subsequent legislative history. The ITCA that Congress intended to make it easier for eligible citizens to register for Federal elections. Thus, the ITCA argues, additional proof of citizenship is inherently against Congressional intent.
The federally enacted National Voter Registration Act (“NVRA”) requires that Arizona “accept and use” the Federal Form, which is a document that U.S. citizens must submit to state officials in order to register to vote in federal elections. In 2004 Arizona voters passed Proposition 200 by popular referendum. Proposition 200 requires individuals who register to vote in federal elections to present proof of citizenship in addition to submitting the Federal Form. The parties disagree whether Proposition 200’s additional proof of citizenship requirement is in line with the NVRA’s requirement that states “accept and use” the Federal Form. Arizona argues that the NVRA and Proposition 200 act harmoniously with each other and therefore do not conflict. In response, Gonzales argues that the NVRA and Proposition conflict with each other and the NVRA should preempt Proposition 200. The result of this decision will effect how Arizona and other states enact laws in order to regulate Federal Elections. Whether Proposition 200’s citizenship verification is an appropriate “acceptance and use” of the Federal Form will impact the ability of individuals to register to vote. Additionally, whether these types of questions should be analyzed under the Supremacy Clause or the Elections Clause of the constitution will effect how future election regulation disputes are addressed.
- Justices to Review Voter Law in Arizona, Adam Liptak, New York Times (Oct. 15, 2012).
- Arizona v. Inter Tribal Council of Arizona. ACLU (Jan. 31, 2013).
- Voter Proof-of-Citizenship Law Gets Supreme Court Review, Greg Stohr, Bloomberg (Oct. 15, 2012).