Two Ways Arizona’s Proof of Citizenship Law Might Get Reinstated

Justice Scalia and Senators Cruz and Vitter are creating paths for Arizona to revive the proof of citizenship requirement.

By Brentin Mock Jun 18, 2013

Republicans have wasted no time striking back against yesterday’s US Supreme Court ruling invalidating Arizona’s "proof of citizenship" voter registration ID law. Under the ruling, Arizona cannot reject federal voter registration forms from people who do not provide documented proof of their citizenship — like a driver’s license, passport or birth certificate — along with it. Arizona created its own state voter registration form that did require citizenship documents, but that form can’t replace the federal form, which is authorized by the National Voter Registration Act ("Motor Voter Act").

Other states have passed similar proof-of-citizenship laws, including Alabama, Georgia and Kansas, and other states have proposed the same. The SCOTUS ruling has established the NVRA-authorized federal voter registration form as the valid "back stop" for people to register with if they don’t want to use state-created registration forms. 

Wrote Justice Antonin Scalia for the majority opinion:

"States retain the flexibility to design and use their own registration forms, but the Federal Form provides a backstop: No matter what procedural hurdles a State’s own form imposes, the Federal Form guarantees that a simple means of registering to vote in federal elections will be available."

But not so fast. Texas U.S. Senator Ted Cruz and Louisiana U.S. Senator David Vitter filed an amendment yesterday, tucked into the immigration reform bill, that would amend the Motor Voter Act so that state voter registration forms — including those requesting proof of citizenship documents — would trump the federal form. 

Their amendment states: "Nothing in [the Motor Voter Act] shall be construed to preempt any State law requiring evidence of citizenship in order to complete any requirement to register to vote in elections for Federal office."

The amendment "sounds like sour grapes and hot air," said Nina Perales, Vice President of Litigation for the Mexican American Legal Defense and Educational Fund (MALDEF), to Colorlines. "The amendment will likely fail.  Congress considered and rejected a similar amendment when it enacted the NVRA in 1993, concluding that state laws that layer additional documentation requirements onto the federal form would defeat the purpose of the NVRA and uniform postcard registration."

But perhaps an amendment isn’t needed. In Justice Scalia’s opinion, he agreed that Arizona’s law should be struck, but he also basically gave Arizona — and any other state — a roadmap for passing a proof of citizenship voter ID law despite his ruling. Scalia said that since the federal Election Assistance Commission is the only Motor Voter-authorized body that can request additional information for the federal voter registration form, that Arizona ought to appeal to it to add the requirement. 

Arizona did do that in 2005 but EAC executive director Thomas R. Wilkey rejected their request. Wrote Wilkey: "While Arizona may apply Proposition 200 requirements to the use of its state registration form in Federal elections (if the form meets the minimum requirements of the NVRA), the state may not apply the scheme to registrants using the Federal Registration Form. … Arizona may not refuse to register individuals to vote in a Federal election for failing to provide supplemental proof of citizenship, if they have properly completed and timely submitted the Federal Registration Form."

That wasn’t good enough, so Arizona requested a second opinion from the EAC commissioners board. The board ended up with a 2-2 vote split (due to vacant board seats, the EAC commission has not had enough members for a full quorum vote), which meant the director’s decision stood. But Scalia reminded the public in his opinion yesterday that "Arizona did not challenge that agency action … by seeking an [Administrative Procedure Act] review in federal court." Scalia believes a federal court may compel the EAC to grant Arizona’s request since the EAC commission can’t give a full vote. 

Perales said this would be "very difficult" for Arizona, though, because the EAC director already told them "No," and for the same reasons SCOTUS said "No" yesterday. But also, Arizona "would have to prove that they need to [include proof of citizenship] and that’s where the facts really foil Arizona’s efforts because they can not point to a single non-resident trying to vote or even registering to vote."