Civil and Human Rights

U.S. Supreme Court justices ask tough questions on voter registration law

Measure aimed at keeping illegal immigrants off voter rolls


By Rebekah L. Sanders


The U.S. Supreme Court decision on Arizona’s voter-registration law, which aims to keep illegal immigrants off the voter rolls but has made access difficult for some citizens, could come down to one swing justice if questions at Monday’s hearing provide any clues to opinions on the bench.


A lively hour of oral argument appeared to show the usual swing vote, Justice Anthony Kennedy, may reprise that role in a case that deals with election integrity and access to the voting booth. A number of controversial Arizona laws reviewed by the high court in recent years, including the immigration-enforcement measure known as Senate Bill 1070, have come down to split decisions.


At stake in this case is Proposition 200, a precursor to SB 1070 that was passed overwhelmingly by voters in 2004. The measure requires Arizonans who register to vote to provide documentary proof of citizenship, such as a copy of a driver’s license, birth certificate, passport, tribal identification card or naturalization number. The law goes beyond what federal voter-registration rules require as proof of citizenship.


Prop. 200 was almost immediately challenged by voting-rights advocates as burdensome to the young, elderly, minorities and naturalized citizens and to voter-registration organizations. Supporters touted the law as a check against voter fraud.


Arizona Attorney General Tom Horne said he was confident Monday after arguing the state’s case, despite justices frequently interrupting him and changing the direction of debate.


“I felt like I had prepared answers for all the questions they asked,” Horne said. “We have a right to be sure the people who vote (in Arizona) are citizens.”


But Nina Perales, an attorney for a civil-rights group challenging the law, said the aggressive questioning showed the justices agreed with many of her side’s points, including that the Arizona law makes registering to vote “more complicated than an obstacle course.”


“We think the court will come out in favor of our case,” said Perales, of the Mexican American Legal Defense and Education Fund.


The case is the second election-law dispute before the Supreme Court in less than four weeks. Arizona has a stake in both.


Alabama’s challenge on Feb.27 to the landmark Voting Rights Act could free Arizona and other states from three decades of scrutiny by the Department of Justice over racial discrimination in election procedures.


The Supreme Court’s decision in the current case, Arizona vs. The Inter Tribal Council of Arizona Inc., turns on a state’s- rights question: Does Arizona have the authority to impose requirements on voter registration beyond what the federal government requires?


Supporters of Arizona’s law say states have a constitutional duty to verify voter eligibility and protect election integrity. Demanding stricter citizenship proof fits under that power. Lower courts have already held that Arizona can apply the citizenship requirements to the state registration form.


But critics say that when Congress created a separate federal voter-registration form in 1993, under a law known as the “Motor Voter Act,” to try to encourage more voter participation, lawmakers worried about onerous state rules and wanted to simplify the registration process. So, the postcard-size federal form asks only for the voter to sign under penalty of perjury that he or she is a citizen. And Congress required all states to accept the federal form.


Arizona’s law does not conflict with that rule, Horne argued, because the state accepts the form just like an airline would take a passenger’s ticket after verifying proper ID.


Opponent attorney Patricia Millett, however, argued that Arizona violates federal law by rejecting the form when voters fail to provide the right, state-mandated documents.


The Supreme Court’s most pointed questioning came from conservative Justice Antonin Scalia and liberal Justice Sonia Sotomayor.


Scalia appeared to side with Horne’s arguments, repeating nearly word for word the Republican attorney general’s claim that, without the law, election officials have little ability to prevent voter-registration fraud by non-citizens.


He questioned whether a signature would stop someone from illegally registering to vote.


“So, it’s under oath — big deal,” Scalia said. “If you’re willing to violate the voting laws, you’re willing to violate the perjury laws.”


“That’s exactly right, Your Honor,” Horne responded.


Sotomayor, on the other hand, appeared to doubt Horne’s argument that Arizona election officials are following federal law. Sotomayor said it appeared Arizona was flouting federal law by imposing additional requirements.


“I don’t know how you are ‘accepting and using’ (the federal form) when you’re rejecting someone who’s doing exactly what they’re asked to do,” she said. “I have a real big disconnect.”


But it was the relatively few comments from the swing justice, Kennedy, that both sides of the case were trying to read like tea leaves.


Chris DeRose, who teaches election law at Phoenix School of Law and attended the hearing, said he was worried at first that Kennedy’s questioning of Horne showed he was leaning against Arizona.


Kennedy pondered how the simplified federal form would be useful if states could load it up with additional requirements. But then, during the opponent attorneys’ arguments, Kennedy championed giving states more leeway to protect their election integrity.


“I think by the end, Kennedy was very skeptical of the defendant’s position,” based on his last questions, said DeRose, who supports the state’s case.


However, Elizabeth Wydra, chief counsel for the Constitutional Accountability Center, based in Washington, D.C., said a majority of the justices showed they were interested in “the proper balance between federal and state power.”


The justices seemed to agree that Congress intended for an easy federal registration form so that citizens would exercise their right to vote, said Wydra, whose organization wrote an amicus brief for the opponents of the law.


Their questions showed that “they understand that if they uphold Arizona’s law, that could lead to a messy patchwork of different state forms across the country,” she said.


The Supreme Court’s decision is expected by summer.


On the courthouse steps after the hearing, Tucson resident SevaPriya Barrier spoke against the law.


The 40-year-old U.S. citizen and employee of the University of Arizona said she tried to register to vote in 2010, when she relocated from Alabama. But she said she was rejected because she didn’t have an Arizona driver’s license. By the time paperwork came back asking for alternate proof of citizenship, Barrier said, she had missed the midterm elections.


“I wanted to exercise my fundamental right to vote, yet was denied despite meeting the qualifications,” Barrier said. “Please make the votes of citizens count.”


But Arizona Secretary of State Ken Bennett, also speaking in front of the courthouse, said the state is simply doing its job.


“Without additional information, a voter cannot be verified as to being a citizen. And that’s why the voters of Arizona passed Proposition 200,” said Bennett, who is a party to the case. “We’re simply doing what our voters said they wanted us to do.”

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