VOL. 16 ISSUE NO. 43   |  OCTOBER 27 – NOVEMBER 2, 2010


Disenfranchising Americans

Ninth Circuit overturns Arizona’s proof of citizenship requirement to register to vote

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SAN FRANCISCO – On Tuesday, a three-judge panel of the Ninth Circuit Court of Appeals, made up of Associate Justice Sandra Day O’Connor, Chief Judge Alex Kozinski and Circuit Judge Sandra S. Ikuta issued a non-unanimous opinion holding “that the National Voter Registration Act (NVTA) supersedes Proposition 200’s voter registration procedures and that Arizona’s documentary proof of citizenship requirement for registration is therefore invalid.”
Ikuta submitted the opinion for the majority with a dissenting opinion issued by Kozinski.

Ikuta explained in November 2004, when Arizonans passed Prop. 200, which included voter registration and voting provisions, it amended two state statutes, listing the contents of the state voter registration form.

First it added a statement that the applicant shall submit evidence of United States citizenship with the application and that the registrar shall reject the application if no evidence of citizenship is attached.

Second, it amended statute to state, “The County Recorder shall reject any application for registration that is not accompanied by satisfactory evidence of United States citizenship,” and defined what was considered “satisfactory evidence.”

Ikuta wrote, “To resolve the question here, we must first understand both the federal and state voter registration procedures at issue. We earlier explained the changes to Arizona’s registration statutes under Proposition 200 … Our next step is to examine the scope of the NVRA.

Ikuta wrote, “Congress enacted the NVRA because, among other reasons, it determined that ‘discriminatory and unfair registration laws and procedures can have a direct and damaging effect on voter participation in elections for federal office and disproportionately harm voter participation by various groups, including racial minorities.’”

The NVRA enacted three significant changes to federal election registration procedures nationwide, creating a standard federal registration form, requiring states to establish procedures to register voters for federal elections, and regulating maintenance of voting lists.

Arizona argued that the panel was foreclosed from reviewing plaintiff Gonzalez’s NVRA claim because the prior panel’s ruling in Gonzalez I, the preliminary injunction phase of this case, already decided that the NVRA does not supersede the changes to Arizona’s registration system under Proposition 200, that the prior ruling is dispositive and there is no ground for the court to reconsider the issue.

Nonetheless, the majority concluded, due to the paramount authority delegated to Congress by the elections clause, the NVRA, “a comprehensive national system for registering federal voters,” supersedes Arizona’s voter registration requirement for federal elections, while upholding Arizona’s polling place identification requirement.

Kozinski, “dissenting in large part” wrote, “As the majority belatedly acknowledges 47 pages into its opinion, we don’t come to this case with a blank slate. A prior panel has already held in a published opinion that Proposition 200 isn’t preempted because the NVRA ‘plainly allow[s] states, at least to some extent, to require their citizens to present evidence of citizenship when registering to vote,” citing Gonzales v. Arizona.

He wrote, “That is law of the circuit and therefore binding on us … Even if it weren’t, it’s law of the case and can’t be lightly disregarded for that reason.”

Kosinski chastised the majority for its refusal to accept the consequences of that reality and stated, “First, it evades law of the circuit by creating an exception that is squarely foreclosed by a recent unanimous en banc opinion. The majority then weakens our rules governing law of the case by declaring that Gonzalez I’s interpretation of the NVRA is ‘clearly erroneous’ when it’s clearly not. Because I believe that we must take precedent seriously and that Gonzalez I was correctly decided, I dissent from the majority’s conclusion that the NVRA preempts Arizona’s voter registration requirement.”

According to Kozinski, the fundamental rule of circuit law is once a panel decides a legal issue in a published opinion, that ruling binds subsequent three-judge panels and the only instance when a three-judge panel may depart is if there has been “intervening” higher authority that is “clearly irreconcilable with our prior circuit authority.”

He stated, “There are in fact no exceptions to law of the circuit, or at least there weren’t until today.”

Addressing the reasoning of the majority’s decision, Kozinsky wrote, “The majority believes that, by requiring states to ‘accept and use’ the federal form ‘for the registration of voters in elections for federal office,’ the NVRA precludes states from imposing additional requirements. But neither ‘accept’ nor ‘use’ has such a preclusive meaning; it’s entirely possible to accept and use something for a particular purpose, yet not have it be sufficient to satisfy that purpose. Just go to any liquor store that takes personal checks: They will happily accept and use your check, but only after you provide ID showing that you’re authorized to write it. A minute’s thought comes up with endless such examples: passport and visa; car registration and proof of insurance; boarding pass and picture ID; eggs and ham. Those who accept and use the former often also require the latter.”

Kozinki notes the majority never explains why a statute enacted to “protect the integrity of the electoral process” and “ensure” that voter rolls are “accurate” must prohibit states from confirming that those who wish to register are, in fact, eligible to vote.

In conclusion, Kozinski wrote, “The majority distorts two major areas of law before it even reaches the merits. It creates an unprecedented exception to our law of the circuit rule, trampling underfoot a newly minted en banc opinion. The majority also makes a mess of the law of the case analysis by taking issue with a prior panel’s reasoning, not its conclusion.

And, as to the merits, the panel comes nowhere close to proving that Gonzalez I’s interpretation of the National Voter Registration Act was wrong, much less clearly wrong. Few panels are able to upset quite so many apple carts all at once. Count me out.”

It appears this case will be headed to the U.S. Supreme Court to be overturned, as are a good number of Ninth Circuit rulings.


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