At issue is a measure adopted by statewide ballot in 2004, Proposition 200, that requires applicants for voter registration to present documentation proving their citizenship. Acceptable proof includes a driver's license, a naturalization ID number, or a photocopy of a birth certificate, passport, or naturalization document.
Critics of the measure say it erects a barrier to potential voters. More specifically, they say the state law clashes with the more limited demands of the federal voter registration law.
The National Voter Registration Act (NVRA) requires only that an applicant to register to vote affirm his or her US citizenship under penalty of perjury. Congress did not require applicants to present documentary proof of citizenship. But Congress also did not explicitly bar states from seeking additional proof of citizenship while registering potential voters, according to Arizona.
The central question before the high court is whether Congress preempted state government in passing the NVRA, or whether states like Arizona are free to include additional requirements to prove citizenship during the process of registering new voters.
The case, Arizona v. Inter Tribal Council of Arizona (12-71), marks the second time in a year that the high court is considering whether a tough Arizona law dealing with immigrants is preempted by more lenient federal law. Last June, the court struck down a portion of Arizona’s effort to enforce its own tough immigration law – SB 1070 – in response to lax federal efforts to police the border.
President Obama used the case during his reelection bid to appeal for Latino votes by stressing that Republican lawmakers in Arizona and elsewhere were working to disenfranchise minority voters. It is an argument that apparently resonated, with the president winning more than 70 percent of the Latino vote.
Politics was not discussed during the hour-long argument session at the high court. But the apparent split among the justices mirrored a similar split in perspective between Democrats and Republicans.
Justices Sonia Sotomayor, Elena Kagan, and Ruth Bader Ginsburg – appointees of Democratic presidents – were sharply critical of Arizona’s attempt to require documented proof of US citizenship before allowing someone to register to vote.
“If I see the purpose of the [National Voter Registration Act] to simplify registration, how is Arizona’s provision consistent with that objective and purpose?” Justice Sotomayor asked.
“Simplifying the procedure is one of two important purposes of the NVRA,” Arizona Attorney General Thomas Horne replied. “The other is the integrity of the system.”
The federal voter registration form established under the NVRA asks applicants to declare under penalty of perjury whether they are US citizens eligible to vote. No other proof of eligibility is required.
Arizona officials believe the federal provision is not an effective safeguard against fraud. Attorney General Horne said it is the duty of the states to determine if a voter is, in fact, a US citizen and thus eligible to vote.
“But this [federal] form has to enable the state to do that,” Justice Scalia said. Having an applicant check a citizenship box under oath to tell the truth on a registration form is not enough, he said.
“So it’s under oath. Big deal,” Scalia said. “If you’re willing to violate the voting laws, I suppose you’re willing to violate the perjury laws.”
Horne said Arizona had found “hundreds” of individuals who swore on voter registration applications they were US citizens – and voted – but later denied citizenship when filling out jury duty forms.
He said 10 individuals had been prosecuted in a single year for perjury on their voter registration forms.
In contrast, Horne told the justices, lawyers challenging the state’s effort had been able to locate only one US citizen, out of 6 million Arizonans, who was unable to present a document required by Arizona.
Horne said the federal form with its checkbox for citizenship leaves Arizona unable to verify which applicants are citizens and which aren’t. “It’s essentially an honor system,” he said. “It does not do the job.”
Sotomayor responded: “Well, that’s what the federal system decided was enough.”
Horne disagreed. “That’s what they decided as a minimum in the federal form, but they did not say that we [the state] could not ask for additional information.”
Patricia Millett, representing those challenging the Arizona measure, said the National Voter Registration Act was an attempt by Congress to strike a balance and eliminate barriers that had prevented 40 percent of eligible voters from registering.
She said that in Arizona, 31,550 individuals were blocked from registering by the state's law. Some 11,000 of them were subsequently able to register, but 20,000 have not, she said.
US Deputy Solicitor General Sri Srinivasan told the justices that Congress passed the NVRA with the aim to streamline voter registration nationwide. He said it is up to a federal commission, not individual states, to decide the content of the federal voter registration form.
Mr. Srinivasan said Congress limited the role of states in the process. They are able to consult with the federal commission about the requirements and content of the registration form, but they are not empowered to add their own requirements to it.
A decision in the case is expected by June.