AARP Foundation Litigation (AFL) attorneys and other lawyers representing a broad coalition of groups concerned with voting rights successfully challenged voter registration provisions of an Arizona ballot initiative.

Background

In 2004, Arizona voters approved the Arizona Taxpayer and Citizen Protection Act (“Proposition 200”), an initiative whose stated intent was to discourage illegal immigration. Among its provisions, Prop 200 required individuals registering to vote to submit documentary proof of citizenship with their application; required types of identification that a significant minority of the electorate does not possess; required documentary proof of a voter’s identity whenever an individual moves from one Arizona county to another; and even after qualifying, on voting day, required voters to bring specified forms of photo ID to the polls. People who vote early or absentee are not required to provide such identification.

The theory of Prop 200 is that restrictions on voter registration and in-person voting would prevent illegal voting by noncitizens. Evidence of such fraud was and still is minimal. Proponents could point to only perhaps 38 instances since 2004 in which noncitizens sought to vote. (And most of these cases involved noncitizens misunderstanding their rights.) By contrast, thousands of lawfully registered or qualified Arizona citizens do not have the required identification items and would not get to vote. In 2005, Prop 200 was challenged in court for violating the U.S. Constitution, the federal Civil Rights Act and two federal voting laws.

Plaintiffs argue that the law imposes an especially difficult obstacle for citizens who are poor, older, physically disabled, residents of retirement and nursing homes, or geographically isolated, all of whom have problems accessing the documentary proof required.

In 2010 the U.S. Court of Appeals for the 9th Circuit ruled that portions of Prop 200 violate federal election law. Because it ruled that the law was violated, the court declined to consider whether the law violated the federal Civil Rights Act and the U.S. Constitution. The state petitioned the full Court of Appeals to reconsider the 2-1 ruling of its panel. The full court in 2012 upheld the panel’s ruling that Arizona overstepped bounds established by federal election law. Specifically, Arizona may not require additional proof of citizenship by voters using the “Federal [voter registration] Form,” which requires only swearing under oath, and subject to criminal penalties for perjury, that the applicant is a citizen. The U.S. Supreme Court has agreed to review the case. It will hear argument on March 18, 2013, and rule by July 2013.

What’s at Stake

AARP Foundation Litigation is working with other counsel to ensure that the 9th Circuit’s decision is enforced and that all eligible voters can freely exercise their constitutional right to participate in the democratic process.
 
Case Status

In Arizona v. Inter-Tribal Council of Arizona the U.S. Supreme Court has decided to consider the voter registration/proof of citizenship issues resolved by the Ninth Circuit.

(Additionally, AARP Foundation Litigation joined in briefs submitted in Applewhite v. Pa. (PDF), League of Women Voters, Wisc. v. Walker (PDF); and Milwaukee Branch of the NAACP v. Walker (PDF).