Supreme Court Probes Arizona Voter Registration Law

  • March 18, 2013
  • By Jake Grovum (2)

The Supreme Court justices dissected Arizona's challenge to a federal voter registration law during arguments Monday, even as they seemed to avoid the broader issues of states' rights versus federal authority underlying the case.

The case centers on the 1993 National Voter Registration Act, which sought to streamline and standardize voter registration across the country. An Arizona law, approved by voters in 2004 but since struck down, would require prospective voters to prove their citizenship with additional information not required under the federal law.

Lower courts have found that the federal government's authority over voter registration trumps the state's, nullifying Arizona's measure and rendering it unconstitutional. In arguments Monday, Arizona didn't so much assert its authority over the federal government's, but rather suggested the state should be allowed to go above and beyond the federal law to ensure the integrity of its elections.

Even as a number of justices expressed doubt about whether the federal law sufficiently determines a voter's citizenship — the measure allows for someone to simply attest to their legal status under penalty of perjury — they also questioned whether Arizona had acted lawfully in enacting its own standards that went further than the federal law.

Justice Antonin Scalia, who questioned all three attorneys arguing the case before the court, pointed out that other states have had additional verification requirements approved by the federal Election Assistance Commission (EAC), as provided by the federal law. But Arizona, he noted, had enacted its own measure outside that process.

“Why didn't you challenge the form?” Scalia asked Arizona Attorney General Thomas Horne, referencing federal guidelines for verifying citizenship. “That's my problem with this.”

The distinction between Arizona's approach and, for example, Louisiana's, which got a higher standard of proof approved by federal elections officials, is significant. “That's what you should've had,” Scalia told Horne, referring to Louisiana's provisions.

Arizona had tried to have stricter requirements approved by the commission, but failed on a 2-2 vote. The state did not challenge that ruling in court, although it could have. Instead, in striking out on its own and enacting verification requirements outside of the federal process, the justices suggested, Arizona could be running afoul of the federal measure whether or not its verification requirements are unduly burdensome or contradict the Congress' intent to simplify voter registration around the country.

“The EAC is driving the bus,” Justice Elena Kagan said.

That opens the possibility that while some justices on the court seemed sympathetic to Arizona's arguments and the need for greater scrutiny to determine citizenship, this particular challenge to the federal law's supremacy could fail.  Justice Scalia, at one point, suggested to Deputy Solicitor General Sri Srinivasan  that the commission was “going to be in bad shape” next time a similar issue came up and federal officials tried to block a state from enforcing stricter requirements.

Other justices seemed to agree that a state could be allowed to do more to determine citizenship as the situation calls for it. Justice Samuel Alito used the example of a 13-year-old boy who has properly filled out the forms, questioning whether federal law would prohibit a state from seeking more information or conducting its own investigation into whether he was eligible.

Attorney Patricia Millett, representing those who originally challenged the Arizona law, said the state would be able to conduct its own investigation using existing evidence, but that the burden would be on those officials. The difference, she said, is in requiring potential voters to provide that information beforehand, something not allowed under the federal law without the election commission's approval.

The worry, voting rights advocates say, is that allowing states to require more information such as a driver's license number, birth certificate, naturalization documents or other materials, makes it harder and more complicated for potential voters to register. What's more, they say, allowing states to determine their own standards would create exactly the kind of patchwork system that the 1993 law was designed to fix.

Justice Sonia Sotomayor pressed the point early in Arizona's arguments, telling Horne, the attorney general, that the state's law conflicts with the federal measure's purpose of simplifying voter registration.

Horne maintained that the federal law had two purposes: to simplify registration and ensure integrity of elections. The state's law, he argued, successfully balanced both interests. Sotomayor and Justice Stephen Breyer suggested that, on the contrary, the state measure sacrificed simplification.

“We must look back to the purpose,” Breyer said. Justice Kagan echoed that as well, saying the state measure “essentially creates a new set of requirements.”

Justice Anthony Kennedy pointed out the authority of the federal registration form under the National Voter Registration Act. “The postcard,” he said, referencing the document attesting to citizenship, “is presumptive evidence of qualification.”

Whether that is sufficient, however, is something the court seemed to question. But significantly in this case, it seemed at least equally skeptical of Arizona's authority to step beyond the federal law.

“So it's under oath, big deal,” Scalia said. “If you're willing to violate the voting laws, you're willing to violate the perjury laws.”

“That's exactly right, your honor,” Arizona's Horne replied.