Arizona Will Ignore Federal Court’s Ruling on Restrictive Voter Law
April 19, 2012
The Arizona voting wars continue. This week, a federal appeals court ruled that Arizona’s photo ID requirement was not a “poll tax” or racially discriminatory, which was a defeat for voting rights activists who offered evidence that certain voting blocks—particularly people of color—disproportionately lack photo ID.
But the other half of the ruling over Proposition 200 addressing whether Arizona could require documented proof of citizenship when registering to vote—if that proof did not already exist in state databases—left voting rights activists only slightly cheered.
Arizona’s Proposition 200 was the nation’s first state law to require documented proof of citizenship before registering to vote—whether a would-be voter used the national voter registration application, found in all post offices; or a state voter registration form that the state gave out at state offices and is used for its online registration.
The Ninth Circuit ruling only affected the federal voter registration form, saying Arizona overreached by imposing additional proof-of-citizenship conditions. It ordered Arizona election officials to tell local registrars to accept that application, where people attest to citizenship by signing their name under penalty of perjury.
But the Ninth Circuit left unaddressed the question of what the state is to do with its more draconian state voter application—which is given out at all state offices and online. It requires documentary proof of citizenship for anyone without an Arizona driver’s license issued after 1996, a tribal ID or alien registration number.
So a tug-of-war is emerging in this 2012 swing state over two different voter registration forms. The Court told Arizona election officials to accept the federal form. But those officials say they have no plans to stop distributing their stricter form at state offices—even though they will now accept the federal form (which they did not before the ruling).
Moreover, the Secretary of State’s office announced it would appeal the Court’s ruling to the U.S. Supreme Court, which will hear a voter ID case this year.
“The Ninth Circuit opinion does not impact Arizona's voter registration form,” said Matthew Roberts, communications director for Arizona Secretary of State Ken Bennett. “There is no plan to use the national VR (voter registration) form in Arizona. With an appeal on the horizon, I'm sure that the Supreme Court will weigh in on the issue.”
“The issue of what form [state] agencies must use was not presented by this case,” said Estelle Rogers, an attorney and legislative director with Project Vote, one of the voting rights groups that sued Arizona in 2005 after Proposition 200 took effect. “I believe the court will have to issue a mandate that says the state will be enjoined from requiring proof of citizenship when the applicant submits the federal form.”
What this means is that voter registration drives can go forward where advocates can use the less onerous federal application. But in a state where 1.7 million people registered to voter in 2009-2010, and most did so through the motor vehicles offices or online (which is tied to the DMV database), the Court’s ruling won’t change a thing. A small number will still have to present birth certificates, passports or other documents to vote, or be educated that they can run to the post office and register with a federal form.
Moreover, it does not appear that the handful of state agencies that are required by the federal National Voter Registration Act (NVRA) to offer clients the option to register will stop using the state application—even though that same law created the national voter registration form. The best-known NVRA agency is motor vehicles, but the law also requires public assistance and disability offices to offer voter registration.
“Right now we are in compliance with the NVRA with our form,” Roberts said. “Our voter registration form is what it is. We are confident the citizenship requirements for us will be fine.”
Voting rights activists are flustered by the state’s intransigence, but said it was expected.
“I doubt the state has entirely figured out what it is going to do,” said Rogers, “but I don’t think the decision requires them to replace the state forms anywhere.”
What is certain is that voting in Arizona will be more burdensome in 2012. On the front end of the process in most instances, there will be tougher standards to register to vote—barring public education by advocacy groups. And come Election Day, people will have to present a government-issued photo ID or multiple forms of other ID to get a ballot.
Both the citizenship requirement and tougher ID standards were Republican proposals to fight so-called “voter fraud,” or people fraudulently lying about their eligibility when registering to vote and casting ballots. Such electoral fraud rarely happens and almost always is caught by election officials and results in prosecutions. But the drumbeat of voter fraud never goes away because proponents of restrictive voting policies regularly demonize their political opponents, and the myth that dead people and undocumented immigrants are voting en masse fits their beliefs.
In a notable dissent, Judge Harry Pregerson—the longest-serving judge on the Ninth Circuit—rejected the majority’s opinion that tougher voter ID did not discriminate against Latino voters. Voting rights lawyers suing the state claimed the tougher ID standards were akin to a poll tax and unequal treatment under law.
“In the 2006 general election, Latino voters comprised between 2.6% and 4.2% of the voters who turned out to vote, but Latino voters cast 10.3% of the ballots that went uncounted because of insufficient identification,” Pregerson wrote. “Latino voters were over-represented by 200% to 500% in ballots that were uncounted because of insufficient identification.”
While Arizona officials said they would appeal the voter registration aspects of the ruling to Supreme Court, it is not yet clear if voting rights advocates will appeal as well. But it appears likely that voting rights lawyers will be headed back into court to reinforce the aspects of the ruling requiring the state to accept the federal registration form.
With Arizona considered a presidential swing state, you can be sure the Obama campaign and the Democratic National Committee are also paying close attention as they plan their 2012 voter registration and get-out-the-vote efforts.