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AARP Attorneys Represent Clients Seeking to Strike Down Problematic Voter Registration Law

The U.S. Supreme Court is considering whether a state ballot initiative imposing new ID requirements to register to vote violates federal election laws.

Background

For many years, AARP Foundation Litigation attorneys have represented Native American and Latino voters in conjunction with a broad coalition of groups concerned with voting rights in Arizona, including the Inter Tribal Council of Arizona, the League of United Latin American Citizens (LULAC), and the Lawyers Committee for Civil Rights Under Law.

Before 2004, Arizona voters registering to vote and casting their ballots in person had to meet ID requirements that public officials have embraced in many other states. In 2004, Arizona voters approved the Arizona Taxpayer and Citizen Protection Act (“Proposition 200” or “Prop 200”), requiring persons registering to vote to submit documentary proof of citizenship, such as a driver’s license, birth certificate, U.S. passport (or other immigration documents showing citizenship) or Bureau of Indian Affairs card. Prop 200 also required enhanced documentary proof of a voter’s identity if (and whenever) an individual moves from one Arizona county to another. And on voting day, voters must bring photo ID to the polls. People who vote early or absentee are not required to provide such identification.

Such restrictions on voter registration (and in-person voting) would supposedly curb an alleged problem of illegal voting by noncitizens. Yet proponents of Prop 200 could point to no more than 38 instances in which noncitizens sought to vote, many of which involved apparently innocent misunderstandings. By contrast, many thousands of Arizona citizens are lawfully registered and eligible to vote, or fully qualified to register, but do not have the items now required by the law to do so.

In 2005, Prop 200 was challenged in court by three sets of plaintiffs, who argued that it clashes with the U.S. Constitution, the 1964 Civil Rights Act, Section 2 of the federal Voting Rights Act and the National Voter Registration Act of 1993 (NVRA). Plaintiffs asked a federal court to strike down the law on the grounds that it imposes an especially difficult obstacle for citizens who are poor, older, physically disabled, residents of retirement and nursing homes, or otherwise geographically isolated; it imposes an undue burden on the right to vote in violation of the 14th Amendment’s Equal Protection Clause; it effectively creates a “poll tax,” in violation of both the 14th and 24th Amendments to the Constitution; and that by applying different standards and procedures in determining whether individuals within the same county are qualified to vote (since absentee voters are treated differently) and by denying fully qualified voters the right to vote, it violates the Civil Rights Act of 1964. Because Prop 200 was likely to disproportionately affect Native American and Latino citizens — who as a group are less likely to have drivers’ licenses, passports, and as a group of lower family incomes that limit ability to obtain or travel to obtain such documents — the lawsuit also alleged that Prop 200 violated the federal Voting Rights Act.

The case went up and down in the courts, with injunctions preventing portions of Prop 200 from taking effect. While the courts upheld Prop 200’s photo ID voting requirements, a major portion of its voter registration/proof of citizenship rule finally was struck down in October 2010 by the U.S. Court of Appeals for the Ninth Circuit in a lengthy and considered examination of various federal laws and constitutional provisions addressing voter registration. In a 2-1 decision joined by retired U.S. Supreme Court Justice Sandra Day O’Connor (herself a former Arizona state legislator), the Ninth Circuit invalidated a requirement that Arizonans registering to vote by using the Federal Voter Registration Form must present proof of citizenship beyond swearing, under penalty of perjury (a federal crime), that they are U.S. citizens. The court relied on the Elections Clause of the U.S. Constitution, which requires state deference to Congressional enactments, such as requirements for the Federal Voter Registration Form. Arizona sought to require additional documentary proof of citizenship. The State appealed to the full Ninth Circuit, which reaffirmed the panel decision.

The state appealed once again and convinced the U.S. Supreme Court to take the case. AARP Foundation Litigation attorneys continue to co-represent the plaintiffs.

What’s at Stake

AARP Foundation Litigation is working to ensure that all eligible voters can freely exercise their constitutional right to participate in the democratic process.

Case Status

Arizona v. Inter-Tribal Council of Arizona is before the U.S. Supreme Court. A decision is expected by the end of June 2013.