by James Adam

Arizona law requires individuals to present documents proving U.S. citizenship in order to register to vote. Acceptable proof includes a photocopied birth certificate, photocopied pages of a passport, U.S. naturalization papers or Alien Registration Number, an Indian Census number, Bureau of Indian Affairs card number, Tribal Treaty Card/Enrollment Number, or a photocopy of one’s Tribal Certificate of Indian Blood or Tribal/Bureau of Indian Affairs Affidavit of Birth.  Any change of residence between Arizona counties requires subsequent proof of U.S. citizenship.

In April, the United States Court of Appeals for the Ninth Circuit in San Francisco struck down this Arizona law.  The court declared that federal voting laws requiring only that the applicant sign their name to verify US citizenship supersedes local election law.  In June, the Supreme Court overturned a stay of the decision, and Arizona was unable to require proof of citizenship for registration in the November 2012 election cycle.  However, the state can still urge voters to fill out Arizona registration ballots requiring this proof, but they may not bar an individual from simply registering by merely swearing their citizenship under the federal form.  Also at the time of this decision, the Ninth Circuit upheld Arizona’s photo identification requirement.  The Supreme Court will hear the citizenship arguments early next year.

On a side note, Arizona is also a party suing the Department of Justice regarding preclearance requirements under Section 5 of the Voting Rights Act.  Arizona believes it was improperly added to the list of states required to go through this preclearance process.  They claim there are not, nor have there ever been any racially discriminatory voting practices within the state.  In 2005 the Justice Department pre-cleared this citizenship requirement, along with a Voter ID law, after citizens passed both under Proposition 200.

Arizona argues the law allows the state to ensure voters are correctly registered while protecting the integrity of the voting process with a “minimal burden” on individuals.  However, although Arizona’s argument is a legitimate concern, is this law over-inclusive?  It seems the law may be too burdensome, especially when considering how few cases of voter registration fraud likely exist.  Opposition forces argue the requirement is an “undue burden” on potential voters by disenfranchising segments of society, creating unnecessary expenses, and discriminating against certain racial groups. Finally, Arizona claims federal law sets a minimum standard for voter registration, while the state is free to add its own requirements.

Interestingly, the court refrains from addressing the voter race-discrimination arguments.  Instead, the Ninth Circuit specifically defines this case as a federal versus state powers issue.

The clash of federal and state powers in deciding electoral law is certainly no new topic of debate.  Particularly since the 2000 election, arguments regarding election administration have been highly discussed.  Should we give the federal government more power, and thus create a uniform electoral system throughout the country?  The constitution provides state legislatures the authority to determine the “time, place, and manner of elections,” but gives Congress the authority to alter those elections.  The Supreme Court may be forced to decide exactly what this entails, and whether states can truly set their own registration requirements.

Perhaps this case will have a major impact on other aspects of election administration outside of simply the voter registration processes.  There is little doubt much of the general public would not be opposed to uniform standards regarding things like voting machines, which continue to be the source of much confusion and litigation.  This case may continue the push towards federal systems that attempt to uniformly solve modern electoral problems.  It is worth eyeing how this power struggle unfolds come early 2013.


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