Election law

  • March 21, 2013
    Guest Post

    by Gabriel J. Chin, Professor of Law, University of California Davis School of Law

    This week, the Supreme Court heard argument in Arizona v. The Inter Tribal Council of Arizona, a case at the intersection of two lines of cases which have been prominent on the Court’s docket in recent years. The case is an example of a challenge to Arizona’s apparently endless cornucopia of anti-immigrant legislation. It also tests measures which, according to some conservatives, are designed to preserve the integrity of the ballot box, but according to others are calculated to suppress the minority vote.

    The case involves Arizona’s Proposition 200, passed in 2004, which requires prospective Arizona voters to provide proof of United States citizenship before registration. But the federal National Voter Registration Act of 1993 directed the federal Election Assistance Commission to create a federal form for voter registration (current version here). That form requires applicants to provide a date of birth and other identifying information, and an oath that the applicant is a citizen, but does not require independent documentary proof of citizenship.  Federal law requires states to “accept and use” the federal form. The critical question is whether “accept and use” means that a properly completed form is sufficient for voter registration unless the state independently proves that it is fraudulent, or, rather, that the form is the beginning of an application process during which the state may freely add supplemental requirements and inquiries.

    A panel of the U.S. Court of Appeals for the Ninth Circuit, which included retired Justice O’Connor, invalidated Prop. 200’s proof-of-citizenship requirement, over a dissent by Chief Judge Kozinski. En banc, the Ninth Circuit held 9-2 that the requirement was invalid, this time with Chief Judge Kozinski in the majority. Both the panel and the court en banc Circuit upheld a separate provision of Prop. 200, requiring registered voters to show identification at the polls.

    It is common ground that the federal government has broad power over federal elections.  As the Brennan Center and the Constitutional Accountability Center wrote in a brief for me and other constitutional law scholars, under the Elections Clause (Article I, Section 4), Congress may regulate federal elections and supersede state electoral laws. The Framers recognized the national implications of state electoral improprieties, and granted the national government the power to protect itself.  Neither Arizona nor any of the justices questioned the century of precedents to this effect. Instead, the case seemed to turn on the intent of Congress.

  • March 19, 2013
    Guest Post

    by Spencer Overton, a Professor of Law at The George Washington University Law School and a Senior Fellow at Demos.This piece is crossposted at The Huffington Post.

    I attended yesterday’s U.S. Supreme Court oral argument in the Arizona voter registration case.  The argument went well generally, but Justice Alito suggested the Justices would create a “crazy” double standard by requiring that Arizona election officials accept the federal registration form. 

    Alito’s concerns are unwarranted.  Arizona chose to create two standards when it chose to add special “proof of citizenship” to register. 

    The National Voter Registration Act requires that all states “accept and use” a single, uniform voter registration form for federal elections (states can also still use their own registration forms). 

    The Federal Form requires that prospective voters check a box and sign an affirmation that they are U.S. citizens under penalty of perjury. 

    Arizona, however, adopted a state law requiring “satisfactory proof” of U.S. citizenship to register, such as a birth certificate, U.S. passport, or state driver’s license that shows citizenship. As a result, Arizona rejected over 31,000 registrations that lacked its “proof of citizenship” -- including Federal Forms -- even though Arizona concedes it has no evidence that any of these individuals were non-citizens.

    My take is that Arizona must accept all Federal Forms that comply with the citizenship affirmation rules set by Congress. The federal Act was designed to expand participation in federal elections by streamlining the registration process with a simple, uniform Federal Form that prevents states from piling on additional hurdles to register.  Indeed, as Justice Sotomayor mentioned, Congress explicitly rejected an amendment that would have allowed states to require “documentary evidence” of U.S. citizenship. 

     

  • March 18, 2013
    Guest Post

    by Spencer Overton, Professor of Law at The George Washington University Law School and a Senior Fellow at Demos. He is the author of the book Stealing Democracy: The New Politics of Voter Suppression. This post is cross-posted at DemosBlog and the Huffington Post.


    With public attention focused on the Voting Rights Act, many have overlooked a second critical voting case being argued before the U.S. Supreme Court today.

    The latest case involves the simple question of whether Arizona can refuse to accept a federal voter registration form. But the stakes are much higher. A victory for Arizona could accelerate a nationwide trend of political operatives attempting to manipulate election rules for political gain, and could undermine the power of Congress to protect voting rights.

    Arizona Rejected Federal Registration Forms

    The National Voter Registration Act requires that all states “accept and use” a single, uniform voter registration form for federal elections. States can still use their own registration forms, but they must also accept and use the federal form. The purpose of the federal form is to increase participation by preventing states from erecting barriers to voter registration. 

    The federal form requires that prospective voters check a box and sign the form affirming they are U.S. citizens under penalty of perjury. Arizona, however, adopted a state law requiring “satisfactory proof” of U.S. citizenship to register, such as abirth certificate, U.S. passport, or state driver’s license that shows citizenship. 

    As a result, Arizona initially rejected over 31,000 voter registration applications—including citizens who registered using the federal form. Community-based registration drives were hit especially hard, because they rely on approaching individuals who may not be carrying a birth certificate or similar documentation (or unwilling to give a photocopy of these sensitive documents to a registration-drive volunteer). For example, community-based registration drives in Arizona’s largest county—Maricopa County—dropped 44%. 

  • March 15, 2013

    by Jeremy Leaming

    The National Voter Registration Act (NVRA, also called the “motor voter” bill) was enacted to make it easier for people to register to vote. It promotes voter registration drives and requires states to permit people to register to vote via a simple postcard when they obtain or renew their drivers’ licenses or through the mail.

    But some states have chosen to move in the opposition direction. For example, Florida in its overhaul of voting procedures not only attempted to limit early voting, it sought to make it onerous for groups like the League of Women Voters to conduct voter registration drives. Arizona enacted a law that would make it more difficult for people to register through the mail, by demanding more proof of citizenship.

    The U.S. Supreme Court has already heard oral argument in a case challenging the landmark Voting Rights Act of 1965, which requires certain states and towns – those with a clear history of past problems – to obtain “preclearance” of any changes they make to their voting procedures to ensure they do not discriminate against voters because of race. Several of the high court’s right-wing justices appeared ready to strike the preclearance provision in Section 5 of the law. If that were to happen it would deal a significant blow to one of the nation’s most powerful tools to combat racial discrimination in voting.

    On Monday, the high court will hear oral argument in another case challenging the federal government’s constitutional power to protect the right to vote. In Arizona v. Inter Tribal Council of Arizona, Inc., the justices will consider an opinion from the U.S. Court of Appeals for the Ninth Circuit that invalidated the Arizona law, saying the NRVA cannot be undermined by the states.

    In a friend-of-the-court brief lodged with the Court, the League of Women Voters urges the justices to hold that the NVRA overrides states’ attempts to restrict voting.

    “States should not be allowed to play politics with the voter registration process, the key entry point for political participation in our democracy,” the League’s President Barbara Klein said in a press releaseannouncing the group’s brief.

    The Brennan Center and the Constitutional Accountability Center have also weighed in with an amicus brief urging the court to support the federal government’s constitutional authority to protect the right to vote.

     

  • February 27, 2013

    by Jeremy Leaming

    The U.S. Supreme Court’s right-wing bloc appears ready to seriously weaken the integral enforcement provision of the Voting Rights Act of 1965.

    During oral argument in Shelby County v. Holder, all of the court’s conservative justices as SCOTUSblog publisher Tom Goldstein reported appeared “committed to invalidating Section 5 of the Voting Rights Act and requiring Congress to revisit the formula for requiring preclearance of voting changes.” (Section 5 requires certain states and towns, mostly in the South, to obtain “preclearance” for any changes to their voting laws and procedures to ensure they do not harm minority voters.)

    The New York Times’ Adam Liptak in a piece on today’s oral argument noted that Justice Anthony Kennedy asked attorneys arguing in favor of Section 5, how much longer states like Alabama must live “under the trusteeship of the United States government.” Liptak also noted that Justice Antonin Scalia took a shot at Section 5 saying it produces a “perpetuation of racial entitlement.” The Huffington Post's Ryan J. Reilly expounded on Scalia's commentary, noting that the justice flippantly said Congress reauthorized the Voting Rights Act in 2006 because, who could vote against a bill with  such a "wonderful" name.

    Bloomberg’s Greg Stohr also noted Kennedy’s skepticism of Section 5, saying the justice chided Congress for relying on a supposedly outdated formula for deciding what states should be covered.

    Chief Justice John Roberts asked U.S. Solicitor General Donald Verrilli whether the Obama administration believes people in the South “are more racist than citizens in the North.” The Associated Press reported that Verrilli said no.

    As Liptak noted in a piece earlier this morning, it has long been clear that the Court’s conservative wing views with great skepticism the formula Congress has used in determining what states should be covered by Section 5. He noted the 2009 opinion in Northwest Austin Municipal Utility District v. Holder, in which Roberts said Congress should revisit the formula. Congress, however, took no action. Liptak continued that the conservative justices “could stop short of striking down Section 5 itself.” Instead, Liptak said the high court could call for an end to the use of the formula, meaning Congress would need to revise it for “preclearance” to continue to be useful. (During the 2012 elections cycle, Section 5 was used by the Department of Justice to halt potentially discriminatory voting procedures from taking effect in several of the covered jurisdictions, such as Texas, Florida and South Carolina.)

    Goldstein also wrote that it appears “unlikely that the Court will write an opinion forbidding a preclearance regime. But it may be difficult politically for Congress to enact a new measure.”

    Supporters of Section 5 argued in a slew of briefs before the high court that Congress via the 14th and 15th Amendments has great discretion in crafting proper legislation to ensure that states do not violate the rights of minorities, including particularly the right to ensure states do not discriminate in voting. It appeared during oral argument that the court’s five right-wing justices believed Congress has not done its job properly.

    ACS President Caroline Fredrickson said, “With so many recent efforts to suppress the vote, it should be clear that the law remains relevant and necessary. This Court should refrain from deciding unilaterally that Congress has completed its job of ensuring the promise of the 14th and 15th Amendments.”