By Ernest A. Canning on 6/17/2013, 2:15pm PT  

In a ruling hailed by voting rights advocates today, Arizona's requirement that newly registered voters submit proof of citizenship with their registration has been struck down by the U.S. Supreme Court in a 7-2 decision. Justice Antonin Scalia authored the opinion for the majority, while Justices Clarence Thomas and Samuel Alito dissented.

The court rejected provisions of Proposition 200, a ballot measure approved by AZ voters in 2004, which mandated that state election officials reject all applications to register to vote that did not include documentary proof of citizenship. Those documents, however, are not currently required by the Federal Form for voter registration, as approved by the Elections Assistance Commission (EAC) pursuant to provisions of the National Voter Registration Act of 1993 (NVRA).

Today's ruling in Arizona v. Inter Tribal Council of Arizona [PDF], is grounded upon the plenary power given to Congress by the Elections Clause (Art. I §4 of the U.S. Constitution) empowering Congress to preempt state regulations governing the "Times, Places and Manner" of holding federal elections. The court found that the NVRA mandate that states "accept and use" the Federal Form for voter registration takes precedence, and that Prop 200 is invalid because it conflicts with the Congressional intent that the NVRA help ease the ability of citizens to register to vote.

Writing for the majority, Justice Scalia observed that if a state could "demand of Federal Form applicants every additional piece of information the State requires…the Federal Form ceases to perform any meaningful function, and would be a feeble means of 'increas[ing] the number of eligible citizens who register to vote in elections for Federal office.'"

This does not close the door on the issue altogether, however. Justice Scalia noted that, pursuant to the NVRA, any state can ask that "the EAC alter the Federal Form to include information the State deems necessary to determine eligibility." If the EAC then rejects such a request, the state "may challenge the EAC's rejection of that request [in court]"...

As AP's Jesse Holland reported, although Louisiana followed such a course by obtaining EAC approval of that state's requirements for additional documentation to be attached to the Federal Form, the availability of that option has been complicated by the fact that, currently, there are no EAC Commissioners --- apparently, as observed by U.C. Irvine Law Prof. Rick Hasen, because "influential Republicans" are of "the view that the EAC is a failed experiment and nothing should be done to revive it."

In fact, while the President put forward nominations for the two Democratic slots on the four person commission, Republicans have failed to either nominate their own two candidates, or allow for confirmation hearings on the Democratic nominees. This stalemate has persisted, at this point, for years.

As can be expected, there have been competing reactions to this new decision.

At one end of the spectrum is, as noted in the above-cited AP report, Chapman Univ. Law Professor, Tom Caso, who complained that the Court's decision has "opened the door" to non-citizen voting --- this, despite Justice Scalia's assurance that the NVRA (and, therefore, this Supreme Court decision) "does not preclude States from 'deny[ing] registration based on information in their possession establishing the applicant's ineligibility.'"

At the other end, one finds the statement of Sherrilyn Ifill, President and Director-Counsel of the NAACP Legal Defense and Educational Fund, proclaiming that the Court's decision in this case "protects the more than 30,000 individuals whose registration applications were rejected following the passage of Proposition 200, nearly 17 percent of whom were Latinos."

Writing for The Nation and citing a brief by the Mexican American Legal Defense Fund (MALDEF) [PDF] last March, Ari Berman reports that "The law has needlessly prevented eligible voters from registering and has made voter registration work more difficult. 'The proportion of all voter registrations in [Phoenix's] Maricopa County attributable to community-based drives decreased from 24% in 2004 to 7% in 2005, 5% in 2006 and 6% in 2007,' found MALDEF."

Hailing today's ruling, the NAACP not only pointed to the fact that the case was originally filed by "Jesus Gonzalez, a naturalized U.S. citizen who was rejected for registration under Arizona Proposition 200," but noted that the state failed "to identify a single instance" in which a non-citizen voted.

This is in line with The BRAD BLOG's previous investigations with respect to a recent attempted voter purge of suspected "non-citizen" voters from Florida's eligible voter rolls. As a result of a months long investigation, The BRAD BLOG was able to verify only nine (9) non-citizens on the rolls out of some 182,000 voters who had been the targets of a reckless and dishonest purge that had been concocted by the Sunshine state's Republican Governor, Rick Scott, and by his hand-picked, Republican Secretary of State Scott Detzner.

As with polling place Photo ID laws, regulations like those contained in the now invalidated Arizona Proposition 200 are far more likely to prevent perfectly legal citizens from exercising their right to vote than to prevent illicit votes from non-eligible voters.

AP also notes, today's "decision on voter registration has broader implications because other states have similar requirements, such as Alabama, Georgia, Kansas and Tennessee, and still others are contemplating such legislation."

Voting Rights advocates and SCOTUS watchers are still awaiting the court's ruling, which could come as early as this Thursday, on a case with even farther reaching aspects. The court may strike down Section 5 of the Voting Rights Act of 1965 in that upcoming decision. That Section of the long-standing federal law requires that certain jurisdictions with a long history of racial discrimination receive preclearance from the federal government before instituting new election-related laws. Section 5 was invoked this year to block discriminatory polling place Photo ID restrictions laws in states such as South Carolina and Texas. Without Section 5, voting rights advocates fear, it will be much more difficult to block voter suppression efforts until after the damage from such laws has already been done.

Ironically, because of its past history of discrimination, Arizona became a "covered jurisdiction" under the VRA in 1975. In 2005, the same AZ Proposition 200, which the Supreme Court struck down today, was pre-cleared under Section 5 by the George W. Bush/Alberto Gonzales Justice Department

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Ernest A. Canning has been an active member of the California state bar since 1977. Mr. Canning has received both undergraduate and graduate degrees in political science as well as a juris doctor. He is also a Vietnam vet (4th Infantry, Central Highlands 1968). Follow him on Twitter: @Cann4ing.

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