The Other Voting Rights Case

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%. 

Congress Determines U.S. Citizenship for Federal Elections

Arizona is wrong when it argues that the National Voter Registration Act allows Arizona to reject federal forms that lack U.S. citizenship documentation. The congressional record shows a primary purpose of the federal form was to increase participation by streamlining the registration process with a simple, uniform federal form that prevents states from piling on additional hurdles to register. For example, Congress rejected an amendment that would have allowed states to require “documentary evidence” of U.S. citizenship. For similar reasons, the text of the Act states the federal form “may not include any requirement for notarization or other formal authentication.” The agency Congress empowered to administer the federal form—the U.S. Election Assistance Commission—concluded that Arizona’s demand for documentation to accept federal forms violates the federal Act

Arizona’s argument that the Constitution gives the state power to trump Congress in federal elections is also wrong. The Elections Clause of the U.S. Constitution expressly gives Congress power to “make or alter” laws that regulate the “manner” of federal elections. Several prior U.S. Supreme Court decisions have held that the Elections Clause gives Congress broad power over federal elections, including “registration, supervision of voting, protection of voters, prevention of fraud” and other matters. Arizona argues that states are entitled to determine the “qualifications” for voting for federal office, but both Congress and Arizona agree that U.S. citizenship is a qualification for voting.  Congress has the power to determine the manner of proving U.S. citizenship through affirmation and signature, rather than documentation. Congress made a judgment about how to balance preventing fraud with facilitating registration in federal elections, and Arizona cannot overrule Congress’s judgment.

A ruling by the Court for Arizona would undermine not just the National Voter Registration Act, but also other federal voter registration protections for the military, Americans who live overseas, the elderly, and disabled Americans. Alabama, Georgia and Kansas also have adopted “proof of citizenship” laws, and other states would be given a green light to restrict voter registration and adopt other rules that suppress the vote.

As a result, the U.S. Supreme Court should rule against Arizona, and order it to accept federal forms for federal elections that comply with U.S. citizenship rules set by Congress.