BY LINDA BENTLEY | JUNE 19, 2013
SCOTUS knocks down Arizona’s proof of citizenship law
WASHINGTON – The Supreme Court of the United States delivered an opinion on Monday that ruled Arizona’s evidence of citizenship requirement from Proposition 200, passed by voters in 2004, for the purpose of registering to vote is preempted by the National Voter Registration Act’s (NVRA) mandate to “accept and use” the federal registration form.
Justice Antonin Scalia (r), who delivered the opinion of the court, said the contents of the form, as prescribed by the Election Assistance Commission (EAC), a federal agency, does not require documentary evidence of citizenship.
The Arizona law required applications for voter registration, including the federal form, to be accompanied by evidence of citizenship and for election officials to reject any application that was not accompanied by such proof.
The NVRA requires states to permit prospective voters to register to vote in elections for federal office via one of three methods: simultaneously with a driver’s license application, in person, or by mail.
This case (Arizona v. Inter Tribal Council of Ariz. Inc.) concerned registration by mail.
Because a person must be a citizen of the United States in order to be eligible to vote under Arizona law, this case was focused on Arizona’s efforts to enforce that qualification.
Scalia wrote, “Since the power to establish voting requirements is of little value without the power to enforce those requirements, Arizona is correct that it would raise serious constitutional doubts if a federal statute precluded a State from obtaining the information necessary to enforce its voter qualifications.”
He pointed out the NVRA “may require only such identifying information (including signature of applicant) and other information (including data relating to previous registration by the applicant), as is necessary to enable the appropriate State election official to assess the eligibility of the applicant and to administer voter registration and other parts of the election process.”
Scalia noted, in 2005, the EAC was divided 2-2 on the request by Arizona to include the evidence of citizenship requirement among the state-specific instructions on the Federal Form, App. 225, so no action could be taken.
While Arizona could have appealed that decision, or lack thereof, under the Administration Procedure Act (APA), Scalia said Arizona did not file to seek APA review in federal court.
Scalia stated, “[W]e are aware of nothing that prevents Arizona from renewing its request. Should the EAC’s inaction persist, Arizona would have the opportunity to establish in a reviewing court that a mere oath will not suffice to effectuate its citizenship requirement and that the EAC is therefore under a nondiscretionary duty to include Arizona’s concrete evidence requirement on the Federal Form.”
He said Arizona could also argue, as it did in this case, “that it would be arbitrary for the EAC to refuse to include Arizona’s instruction when it has accepted a similar instruction requested by Louisiana.”
In conclusion, Scalia stated Arizona could “request anew that the EAC include such a requirement among the federal form’s state-specific instructions, and may seek judicial review of the EAC’s decision under the APA,” while affirming the judgment of the Court of Appeals.
In a dissenting opinion, Justice Clarence Thomas disagreed with the court’s interpretation that Arizona “accept and use” the federal voter registration form preempts an Arizona law requiring additional information.
Thomas stated, “I do not agree, and I think that both the plain text and the history of the Voter Qualifications Clause … and the Seventeenth Amendment authorize States to determine the qualifications of voters in federal elections, which necessarily includes the related power to determine whether those qualifications are satisfied.”
Thomas went on to say he construes the law as only requiring Arizona to accept and use the form as part of its voter registration process, while allowing Arizona to request whatever additional information it determines is necessary to ensure voters meet the qualifications it has the constitutional authority to establish.
He wrote, “In Arizona’s view, it ‘accepts and uses’ the federal form in the same way that an airline ‘accepts and uses’ electronic tickets but also requires an individual seeking to board a plane to demonstrate that he is the person named on the ticket.”
While the majority opinion stated Arizona could pursue relief by making an administrative request to the EAC, which, if denied, could be challenged under the APA, Thomas, citing Justice Samuel Alito’s dissenting opinion, wrote, “Justice Alito is correct to point out that the majority’s reliance on the EAC is meaningless because the EAC has no members and no current prospects of new members … Offering a nonexistent pathway to administrative relief is an exercise in futility, not constitutional avoidance.”
Alito stated, “The Court reads an ambiguous federal statute in a way that brushes aside the constitutional authority of the states and produces truly strange results,” and notes, under the Constitution, the states, not Congress, have the authority to establish the qualifications of electors for Members of Congress.
Alito goes on to state, “Exercising its right to set federal voter qualifications, Arizona, like every other state, permits only U.S. citizens to vote in federal elections, and Arizona has concluded that this requirement cannot be effectively enforced unless applicants for registration are required to provide proof of citizenship. According to the court, however, the NVRA of 1993 deprives Arizona of this authority. I do not think that this is what Congress intended.”
Alito said he also doubted Congress meant for the success of a voter registration application to depend on which of two valid but substantially different forms the applicant happens to fill out and submit.
As written, the court’s majority opinion upholds the notion that the state must register an applicant that fills out the federal form without requiring proof of citizenship.
“But the court does not question Arizona’s authority under another provision of the NVRA … to create its own application form that demands proof of citizenship; nor does the court dispute Arizona’s right to refuse to register an applicant who submits that form without the requisite proof,” wrote Alito, adding “I find it very hard to believe that this is what Congress had in mind.”
Because the EAC currently has no members, and may not have any members in the near future, Alito called Arizona’s ability to obtain a judicial resolution of its constitutional claim “problematic,” and the court’s remedy “a veritable procedural obstacle course …”
Alito stated the Social Security Administration “accepts and uses” its application form even though persons applying for a Social Security Card must also prove that he or she is a citizen or has qualifying immigration status.
He wrote, “As such examples illustrate, when an organization says that it ‘accepts and uses’ an application form, it does not necessarily mean that the form constitutes a complete application.”
Alito said the court’s interpretation could not possibly be what Congress intended and concluded, “Properly interpreted, the NVRA permits Arizona to require applicants for federal voter registration to provide proof of eligibility.”