Arizona Case is a Vivid Reminder of Lasting Power of Motor Voter

[Image courtesy of wikipedia]

Earlier this week, the U.S. Court of Appeals for the 9th Circuit handed down an opinion in Gonzalez v. Arizona, a long-running case involving a challenge to Arizona’s proof of citizenship and ID requirement – two provisions enacted by Arizona voters as part of Proposition 200 in 2004.

I have been following this case for several years, yet I will readily admit that I had completely forgotten about it in the wake of all the other challenges and controversies across the nation recently. The last “big news” on this case was a U.S. Supreme Court decision in 2006 vacating an injunction and sending the case back to the lower courts for further disposition.

Nearly six years later the case is back, and it involves a signifcant wrinkle that will be interesting to watch as Election Day 2012 approaches. Specifically, the circuit has said that while Arizona’s proof of citizenship law is acceptable, it cannot be enforced against voters or organizations who use the federal voter registration form created for use by the National Voter Registration Act (NVRA) of 1993, or motor voter. States are required by NVRA to “accept and use” the federal form – and so the courts in Arizona were being asked to resolve this conflict.

In doing so, the circuit court found:

Although Arizona has offered a creative interpretation of the state and federal statutes in an effort to avoid a direct conflict, we do not strain to reconcile a state’s federal election regulations with those of Congress, but consider whether the state and federal procedures operate harmoniously when read together naturally … Here, under a natural reading of the NVRA, Arizona’s rejection of every Federal Form submitted without proof of citizenship does not constitute “accepting and using” the Federal Form. Arizona cannot cast doubt on this conclusion by pointing out that the NVRA allows states to reject applicants who fail to demonstrate their eligibility pursuant to the Federal Form. Congress clearly anticipated that states would reject applicants whose responses to the Federal Form indicate they are too young to vote, do not live within the state, or have not attested to being U.S. citizens. Indeed, the NVRA instructs the EAC to request information on the Federal Form for the precise purpose of “enabl[ing] the appropriate State election official to assess the eligibility of the applicant.” [pp. 4139-40, citations omitted]

This case will almost certainly be appealed to the U.S. Supreme Court, which is already likely to hear other arguments from states that the federal government has overstepped its bounds in the realm of election policy.

For now, however, voters in Arizona who do not wish to offer proof of citizenship will be able to use the federal form. How that works – and how state and local election offices adapt their policies to cope – will be fascinating to watch (though I suspect much less so from the inside) – especially given the possibility that appeals, injunctions etc. could change the law back again and re-impose the proof of citizenship requirement. [I should note, however, that Arizona’s online registration system already includes citizenship information through its linkage to the state’s Motor Vehicles Division – perhaps making this less of an issue than some may expect.]

Still, the Gonzalez case is a powerful reminder that, just like the Voting Rights Act, “motor voter” still has a kick almost two decades after it was enacted.

If nothing else, I’m sure not to lose track of this case again.