Wednesday, October 27, 2010
Ninth Circuit Panel Tosses Arizona Voter Registration Requirements
Justice O’Connor, Sitting by Designation, Says State Law Conflicts With ‘Motor Voter’
By STEVEN M. ELLIS, Staff Writer
The Ninth U.S. Circuit Court of Appeals yesterday threw out part of an Arizona law requiring proof of citizenship to register to vote, but left standing a portion requiring registered voters to present proof of identification to cast a ballot.
A split three-judge panel ruled that the voter-registration portion of Proposition 200, which was approved by voters in 2004, was void as inconsistent with the National Voter Registration Act, otherwise known as the “Motor Voter’ law. However, the panel unanimously held that the identification requirement did not violate the U.S. Constitution or the Voting Rights Act.
Sitting by designation, retired U.S. Supreme Court Justice Sandra Day O’Connor wrote for the majority that the NVRA’s comprehensive national system for registering federal voters superseded the Arizona law’s conflicting voter registration requirement given “the paramount authority delegated to Congress by the Elections Clause.”
Chief Judge Alex Kozinski dissented, faulting the majority for ignoring what he said was binding, contrary precedent from a 2007 ruling by the Ninth Circuit.
Jon Greenbaum, legal director for the Lawyers’ Committee for Civil Rights Under Law and co-counsel for the plaintiffs, said that his clients were “elated that the Ninth Circuit has properly applied federal election law and struck down the documentary proof of citizenship requirement.” He said the ruling “will enable the many poor people in Arizona who lack driver’s licenses and birth certificates to register to vote.”
Linda Brown, executive director of the Arizona Advocacy Network, one of the plaintiffs, commented:
“The real crime is that this law disenfranchised tens of thousands of citizens who wanted to vote but lacked the documentation to register. After Prop 200’s restrictions were implemented, groups that had long conducted registration drives experienced a significant drop in the number of people they were able to register, so they abandoned those efforts. We expect they will once again be registering voters.”
Representatives of the State of Arizona could not be reached for comment.
The plaintiffs—including a group of Arizona residents and organizations, and a non-profit organization representing Arizona Indian tribes—filed suit shortly after voters approved Proposition 200. They alleged that it violated federal voter registration procedures, which require that voters complete a standardized federal registration form, and constituted a poll tax in violation of the Twenty-fourth Amendment and the Fourteenth Amendment’s Equal Protection Clause.
They also claimed that the law burdened naturalized citizens in violation of equal protection and disparately impacted Latino voters and diluted their voting power in violation of the Voting Rights Act.
The plaintiffs sought an injunction against the registration requirement for the 2006 general election, but the U.S. District Court in Arizona denied the request, and the Ninth Circuit affirmed after the case went up to the Supreme Court. The Ninth Circuit ruled in Gonzalez v. Arizona, (2007) 485 F.3d 1041 that the requirement was neither a poll tax nor a violation of the NVRA.
Relying on that ruling, U.S. District Judge Roslyn O. Silver granted Arizona summary judgment and, after trial, resolved all of the other claims in the state’s favor.
On appeal, however, O’Connor opined that the Elections Clause, not the Supremacy Clause, governed as to whether the NVRA preempted the registration requirement. Writing that states may create and implement their own federal election procedures except to the extent that Congress declares otherwise, she explained:
“Given the NVRA’s comprehensive regulation of the development of the Federal Form, there is no room for Arizona to impose sua sponte an additional identification requirement as a prerequisite to federal voter registration for registrants using that form.”
O’Connor rejected Arizona’s argument that the “law of the case” doctrine required her to defer to the prior Ninth Circuit ruling. Commenting that “the prior panel’s conclusion was rooted in a fundamental misreading of the statute,” and noting that no other courts had yet relied on that ruling, she said: “Interests of efficiency and finality clash with the responsibility of the court to not issue judgments known to be wrong on the facts or law.”
Judge Sandra S. Ikuta joined O’Connor in her opinion, but Kozinski accused the majority of creating an exception to the law of the case that was foreclosed by a recent en banc opinion, and of coming “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.”
Kozinski did, however, agree with O’Connor that the requirement of proof of identification at the polls did not violate the Voting Rights Act because the plaintiffs presented no evidence showing that Latinos’ ability to obtain or possess identification for voting purposes resulted in them having less opportunity to participate in the political process and to elect representatives of their choice.
He also agreed with his colleagues that the identification requirement was not a poll tax under the Twenty-fourth Amendment because it was neither a fee imposed on voters as a prerequisite for voting nor a burden imposed on voters who refused to pay a poll tax, and with her determination that the requirement was not an invalid poll tax under the Fourteenth Amendment because any payment associated with obtaining the required documents was related to the state’s legitimate interest in assessing the eligibility and qualifications of voters.
The case is Gonzalez v. State of Arizona, 08-17094.
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