High court on voter registration
From statehood, the Arizona Constitution has required citizenship to vote. In 2004, Arizona voters approved a ballot measure requiring new registrants to provide proof of citizenship, through a driver’s license, birth certificate or other documents.
Today, Arizona has a bifurcated electorate. Those registered prior to the 2004 proposition, or who provided the proof of citizenship subsequently, can vote for all offices, state and federal. Those who registered subsequently and who affirm citizenship, but do not offer documentation, can vote only for federal offices.
A recently enacted bill (House Bill 2492) seeks to beef up the state’s proof of citizenship requirement. This has been denounced in liberal activist circles and already has had lawsuits filed against it.
One of the claims is that the issue has already been before the U.S. Supreme Court and the bill defies the court’s ruling in that case, Arizona v. Inter Tribal Council of Arizona, decided in 2013.
That’s a misrepresentation of what was before the court at that time and what it held.
There are three provisions of the U.S. Constitution at work. One gives states the right to determine the times, places and manner of congressional elections, but gives Congress the right to supersede those determinations. Two others provide that the electors for the House and Senate respectively shall be those eligible to vote for the most numerous branch of the state legislature.
According to the high court, in this case and others, that means that Congress has the final say about the conduct of elections for the House and the Senate. But states have exclusive authority over who is eligible to vote in them.
Congress directed that a federal voter registration form be promulgated that could be used in every state. That form didn’t require proof of citizenship, just an attestation of it. The question before the court was whether Arizona had to accept such registrations in violation of the state law.
The majority opinion was written by Talmudic Justice Antonin Scalia, at his hair-splitting best. Or worst, depending on your perspective.
Scalia opined that the federal form represented a time, place or manner regulation, and thus Arizona had no choice but to accept registrants from it. However, he then proceeded to spilt hairs.
Arizona, on the other hand, had the exclusive right to determine who was eligible to vote in both state and congressional elections. And it had the right to require information to determine compliance with its eligibility qualifications. There would be a constitutional problem, Scalia averred, if a federal law precluded the state from enforcing its voter qualifications.
However, Scalia’s hair-splitting continued, that constitutional issue wasn’t yet ripe because Arizona hadn’t exhausted its administrative remedies. It could ask the Elections Assistance Commission to amend the federal form used in Arizona to include the state’s proof of citizenship requirement. Scalia strongly suggested the EAC would have no choice but to accede, even musing about a writ of mandamus if it didn’t.
Arizona pursued the path Scalia laid out. The EAC refused to include the state’s proof of citizenship requirements on the federal form. The state sued in federal court. The district court applied Scalia’s reasoning and ordered the EAC to accede. A court of appeals reversed.
And then the high court, although the state had followed to the letter the path Scalia laid before it, refused to accept an appeal of the adverse court of appeals decision.
HB 2492 takes a different approach. If a registration is turned in without the proof of citizenship state law requires, election officials must check the name against various databases that include citizenship status, such as the driver’s license bureau, Social Security and immigration services.
If proof of citizenship is found, even if not provided by the applicant, the registrant is fully enrolled and can participate in all elections, for both state and federal offices.
If proof is found of noncitizenship, the applicant is notified, as is law enforcement.
If what is found is inconclusive, the applicant is notified, given a chance to provide the missing proof of citizenship, and is eligible to vote in congressional elections in the interim.
The duty for election officials to research citizenship, rather than simply rejecting federal form applications not having the proof required by state law, is different than what was before the court in 2013.
Regardless, the high court in 2013 did not say that Arizona had no choice but to allow those not offering proof of citizenship to vote in federal elections anyway. It laid out a path to require proof of citizenship even by those using the federal form. And then left the state high and dry when it trod down that path.
Justices Clarence Thomas and Samuel Alito rejected Scalia’s hair-splitting in dissent. In their opinion, Arizona using the federal form as a beginning point, and then requiring the additional proof of citizenship in state law, was the appropriate balancing of the constitutional division of responsibility.
Given the record since the court’s 2013 ruling, if HB 2492 also gets before the high court, its new justices are likely to see greater wisdom in Thomas and Alito’s view than in Scalia’s failed hairsplitting.