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Voter Registration at Issue in Cases Brought by Arizona and Kansas

Ruling that proposed intervenors (including several represented by AARP Foundation Litigation) had tests of timeliness, commonality, and no undue burden on existing litigation, a Kansas federal court allowed voting rights supporters to participate in a dispute over whether Kansas and Arizona may impose requirements beyond those enacted by Congress governing voter registration for federal elections within their borders.

The U.S. Supreme Court in 2013 ruled that a 2004 Arizona ballot initiative requiring extra proof of citizenship in order to vote in federal elections violates U.S. election law. Yet drawing on a possible escape hatch outlined in that ruling, Arizona and Kansas have sued to implement such restrictive voter registration requirements.

Background

The U.S. Supreme Court struck down Arizona’s supplemental state proof-of-citizenship requirements for persons seeking to register to vote in federal elections beyond requirements imposed by Congress. Arizona voters approved those requirements in 2004 as part of a statewide referendum, Arizona Proposition 200.

The Federal Form for voter registration, approved by the federal Election Assistance Commission (EAC) pursuant to the National Voter Registration Act of 1993 (NVRA), only requires voter registrants to swear, under penalty of perjury, that they are U.S. citizens. By contrast, Proposition 200 sought to impose additional documentary citizenship proof requirements. The Supreme Court ruled that the Elections Clause of the U.S. Constitution permits Congress to set rules for the “time, place and manner” of federal elections that “pre-empt” contrary state laws.

AARP Foundation Litigation attorneys, together with other voting rights legal advocates, including the Lawyers Committee for Civil Rights Under Law, represented organizations and a state legislator  giving voice to the interests of Native-American and Latino voters, including the Inter Tribal Council of Arizona (ITCA), the League of United Latin American Citizens (LULAC). The Mexican American Legal Defense & Educational Fund (MALDEF) filed a separate suit on behalf of Latino voters that was combined with the ITCA case.

Proposition 200 required those seeking to register 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 a Bureau of Indian Affairs card. That law was challenged by plaintiffs who asserted that due to their income, geographic isolation, disabilities, or other factors they were less likely to have drivers’ licenses, passports, and incomes that allow them the means to travel to obtain such documents and thus while eligible to vote, they were restricted by Proposition 200 from doing so. Plaintiffs also 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.

The case ultimately arrived at the Supreme Court. The Court declared unconstitutional Arizona’s supplemental citizenship proof requirements. A 7-2 majority 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, as federal election laws generally take precedence over conflicting state laws.

Significantly, the Supreme Court ended its ruling with a hint that the battle over proof of citizenship could be continued. The Court noted that the State could return to the Election Assistance Commission seeking relief, and file suit if the EAC decided not to give it. Shortly after the Court’s ruling, Kansas, Arizona and Georgia took the Court’s suggestion and sought relief from the EAC. The EAC 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 then sued the EAC in federal court in Kansas.

AARP Foundation Litigation has now joined its co-counsel in the prior suit in Arizona in an effort to defend the favorable ruling issued by the Supreme Court. Representing the same clients, AFL and co-counsel moved to intervene in the suit against EAC on the side of the United States and in opposition to Kansas and Arizona. Three other groups — the ACLU, Project Vote and the Mexican-American Legal Defense and Education Fund (MALDEF) — also moved to intervene on behalf of other Kansas and Arizona voters opposed to documentary proof of citizenship in federal elections. The federal district court allowed all four sets of intervenors to participate in the ongoing dispute.

What’s at Stake

Enforcing federal election law ensures that all eligible voters can freely exercise their constitutional right to participate in the democratic process — at least in federal elections. The NVRA was enacted to encourage electoral participation, including by mandating a simple, standard federal voter registration form. Prop 200 and similar laws would impede that objective. And now Kansas and Arizona seek to undo the Supreme Court’s 2013 ruling upholding the NVRA by asking for an order requiring the EAC to modify state-specific requirements for completing federal registration forms. (Kansas and Arizona would go still farther; even if they lose their suit against the EAC, they propose to implement separate election rules for voters in federal and state elections. Those registered to vote with the Federal Form only could vote in federal elections and not in state elections. This dual system is the subject of separate litigation initiated by the national ACLU and the ACLU of Kansas.)

Case Status

Arizona v. Inter-Tribal Council of Arizona was decided by the U.S. Supreme Court in June 2013. Kobach v. U.S. EAC is before U.S. Court of Appeals, 10th Circuit.