In 2005, three sets of plaintiffs challenged Prop 200. These persons and groups included representatives of 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 plaintiffs argued that Prop 200 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 an undue burden on the right to vote, and creates especially difficult obstacles for citizens who are poor, older, physically disabled, residents of retirement and nursing homes, or otherwise geographically isolated. They argued that it effectively creates a “poll tax” and that it unlawfully applies different standards and procedures in determining whether individuals within the same county are qualified to vote.
Finally, plaintiffs alleged that Arizona violated the NVRA by refusing to register voters based solely on the “Federal Form,” which only requires voters to check a box and attest with their signature, subject to prosecution for criminal perjury, that they are U.S. citizens. Instead, under Prop 200, the State requires documentary proof of citizenship.
The case bounced up and down 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 using the Federal Voter Registration Form present proof of citizenship beyond swearing to their U.S. citizenship. 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. The State appealed to the full Ninth Circuit, which reaffirmed the Court of Appeals panel decision.
The State appealed once again and convinced the U.S. Supreme Court to take the case. AARP Foundation Litigation attorneys continued to co-represent the plaintiffs. On June 17, the Court affirmed the lower court decisions striking down supplemental citizenship proof requirements. The Court made clear that while usually Congress must state plainly its intent to pre-empt state laws, under the Elections Clause a lesser standard is required to show federal pre-emption, as federal election laws generally take precedence over conflicting state laws.
Significantly, the Supreme Court ended its ruling with a hint that the battle in Arizona over proof of citizenship could be continued. The Court noted that the State can return to the Election Assistance Commission seeking relief, and file suit if the EAC decides not to give it. Shortly after the Court’s ruling, the states of Kansas, Arizona and Georgia took the Court’s suggestion and sought relief from the EAC. The EAC once declined to approve state-specific citizenship documentation requirements, explaining that the Commission lacked a quorum of members appointed by the President and approved by Congress. Kansas and Arizona sued the EAC in federal court in Kansas demanding a court order requiring a different result.
In November, 2013, AARP Foundation Litigation joined its co-counsel in the prior suit in Arizona in an effort to defend the favorable ruling issued by the U.S. Supreme Court. AFL and its allies moved to intervene in the Kansas suit against EAC on the side of the U.S. and in opposition to the States of Kansas and Arizona.
What’s at Stake
Enforcing the federal law ensures that all eligible voters can freely exercise their constitutional right to participate in the democratic process.
Arizona v. Inter Tribal Council of Arizona was decided by the U.S. Supreme Court.