Tuesday, June 18, 2013

Arizona: Voter Registration and the Road Ahead

By Associate Professor Justin Levitt

This commentary was cross-posted to Election Law @ Moritz.

June arrived with two election law cases at the Supreme Court. One is still pending: a highly anticipated decision on section 5 of the Voting Rights Act. The other, more frequently overlooked, was decided yesterday. And there are some quirks of the opinion that seem to depart from the swiftly congealing conventional wisdom that the states might actually have "won," and now need only run out the clock.

The case is called Arizona v. Inter Tribal Council of Arizona, Inc., but it has bounced through the courts under various names for seven years. In 2004, Arizona voters passed Prop 200, increasing identification requirements at the polls (one valid photo ID or two non-photo documents with name and current address) and requiring new voters to submit documentary proof of citizenship with a voter registration form.

There are policy reasons to question the merits of laws like these, whose costs can be larger than their benefits. Americans do not emerge from the womb with paperwork stamped on their skin, and as our Medicaid experience demonstrates, there are real individuals born in the country who do not have documentation of their citizenship readily available; the burdens on those people have to be assessed against the minimal fraud that such requirements incrementally deter, over and above prosecution and deportation. (Incidentally, it's not unusual for popular initiatives to disproportionately burden a minority of residents; that's a problem I've called to the Court's attention in the also-still-pending Prop 8 case.) But today's decision had little to do with those policy questions, or on the constitutional limits of that cost-benefit assessment.

Instead, yesterday's decision was about a relatively narrow slice of the case: whether Arizona can require that voters submit documentary proof of citizenship in order to process a standardized federal voter registration form for federal elections, when Congress appeared to have said otherwise. The Court was not asked to discuss what Arizona can require for its own elections for state office, or what Arizona can require of individuals attempting to register using state paperwork. But in the 1993 NVRA (better known as "motor-voter"), in order to cut through a maze of state bureaucracy and provide simplified one-stop procedures for voter registration, Congress required that states like Arizona "accept and use" a federal voter registration form for elections to federal office, period. The court below, both in panel and en banc, found that this statute preempted Arizona's requirement of additional documentation before accepting the federal form.

There were some intriguing aspects of the opinions below, ignored by the Court today. The panel opinion was written by a former clerk of Justice O'Connor, joined by Justice O'Connor herself, retired from the Court but picking up occasional cases. Chief Judge Kozinski, often seen as a leading conservative jurist, wrote an impassioned dissent, focused largely on the decision's departure from an earlier panel decision in the case. En banc, Chief Judge Kozinski was able to reconsider the issue anew, and found the legislative history decisive in rejecting Arizona's law. The Senate version of the NVRA explained that states could require citizenship documentation with the federal form; the House version did not. The conference committee specifically rejected the Senate version, explaining that the Senate provision was "not . . . consistent with the purposes of this Act" and "should be deleted"; both houses voted to adopt the conference bill, over strong dissent. That is, when asked directly whether the NVRA allowed states to require extra documentation, Congress said no.

None of that appeared in Justice Scalia's opinion for the Court -- perhaps unsurprising, given the author's noted distaste for legislative history even at its clearest. The Court rejected Arizona's claim based on text and context alone: the NVRA mandate to "accept" a federal form means that a complete federal form may not be rejected without some other evidence of invalidity. It further held that Congress had the constitutional authority to issue such a mandate, as long as Congress stuck to its broad Elections Clause authority to decide how federal elections are held, rather than who is eligible to participate.

Marty Lederman has mentioned some intriguing constitutional ramifications of this latter distinction. But I want to focus here on the practical repercussions for Arizona.

Several commentators have suggested that the Court's discussion of this how/who distinction provides a "road map for Arizona ultimately to win" on remand. I'm not so sure that I agree.

Certainly, the Court did offer a road map for a continued challenge. Federal statutes give the federal Election Assistance Commission authority to decide the extent to which the federal voter registration form may be tailored to include, inter alia, information "necessary to enable the appropriate State election official to assess the eligibility of the applicant." The EAC has, in the past, allowed various states to request certain information on the form, but it rejected Arizona's request. The Court noted that Arizona may ask again. But the EAC -- which is also the only federal body collecting essential data on how elections are actually run -- is, tragically, a ghost agency, with no commissioners and continuing existential threats. So in the absence of EAC action to approve Arizona's wishes, the Court also suggested that Arizona might seek court assistance.

Still, though the Court invited continued litigation, I am less sure that it forecast the result. The opinion itself carefully disclaims any conclusion. And the merits are messy. The EAC has broad discretion to determine the tailoring of the federal form -- but this discretion does not, presumably, overcome contrary congressional intent. If, as Chief Judge Kozinski determined, Congress specifically voted to reject a provision permitting states to require citizenship documentation as inconsistent with the Act, an EAC grant of Arizona's request would be just as inconsistent.

So assume that permission is not forthcoming. The Court also pointed to potential arbitrariness in the EAC's decision to reject Arizona's request but reject a "similar" request from Louisiana. Except that Louisiana's request is not similar at all. The EAC allowed Louisiana to ask for documentation to accompany the federal form in certain circumstances, yes. But Louisiana's demand mirrors existing requirements of federal law. Under current federal law, first-time voters registering by mail without a driver's license number or Social Security number must, before voting, submit an identity document from a broad menu. Louisiana asks all voters registering by mail without a driver's license or Social Security number to attach such a document. The parallel with federal law is clear. By contrast, Arizona sought documentation that is required by no federal law and substantially more restrictive, precluding some eligible individuals from registering who are nevertheless otherwise entitled by federal law to vote. Even for those who disagree with the EAC's decision, agreeing to one (Louisiana) and denying the other (Arizona) isn't necessarily "arbitrary.

The Court's final stop on the road map is a potential case contesting whether Arizona has a right to require documentary proof of citizenship for registration, in the event of EAC rejection or inaction. The standard noted by Justice Scalia appears to be the same under statute as in a potential constitutional challenge: the federal government may not preclude states from collecting information "necessary to enable the appropriate State election official to assess the eligibility of the applicant." I suspect that Arizona will claim that the documentation it seeks is necessary. But 49 other states -- each of which likewise precludes noncitizens from registering, without requiring documentary proof at registration -- apparently feel differently. State control over qualifications cannot mean that states may require, in the face of federal objection, any information they would find incrementally useful, or state control over "who" would wholly swallow federal control over "how," gutting the Election Clause entirely.

What all of this means is that the only certainty moving forward is the plausibility of further litigation, if Arizona clings to the defense of its particular initiative, in the face of congressional opposition, as applied to federal elections using the federal registration form. After seven years and two trips to the Supreme Court, Arizona can decide whether it wishes to fight further. But yesterday's opinion should not give defenders of the restrictive state requirement much solace in the courts.

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