The federal district court in Arizona has just granted partial summary judgment to Arizona in Gonzalez v Arizona. The disappointing decision upholds the part of Proposition 200, a 2004 anti-voter and immigrant rights initiative which requires voter registration applicants to provide proof of citizenship in order to register to vote. The only acceptable proof of citizenship include: a copy of a state driver’s license issued after October 1, 1996, birth certificate, passport, Indian identification, or original naturalization papers. The decision found that the initiative does not violate the National Voters Registration Act (NVRA) and does not create a poll tax.
The district court decision was not surprising because it relied on a 9th Circuit Court of Appeal decision denying a preliminary injunction sought by the plaintiffs. However, both courts ignored the language, legislative history and intent of the NVRA.
The language of the NVRA specifically sets forth what can be required on a voter registration application. It even addresses the citizenship issue by requiring applicants to check a box affirming citizenship. Granted, the NVRA does not specifically say that proof of citizenship is prohibited, but it also does not say individuals cannot be required to provide fingerprints and retina scans before registering. Is that next?
The circuit court than rewrote the NVRA and failed to address the fact that the Elections Assistance Commission (EAC) – the agency charged with creating the federal form – found that applicants using the federal form mandated by the NVRA could not be required to provide proof of citizenship. The NVRA allows states to use a state developed form “in addition to” the federal form. The court found that states could use the federal form that is certified by the EAC or – “in the alternative”- a state developed form. Does this mean Arizona does not need to accept the federal form?
Even if the NVRA does not ban additional barriers to voter registration, the legislative history explicitly references the barrier of requiring proof of citizenship and shows that Congress rejected it. The conferees explicitly removed language that had been added by the Senate to allow states to require proof of citizenship:
The conferees agree with the House bill and do not include this provision from the Senate amendment. It is not necessary or consistent with the purposes of this Act. Furthermore, there is concern that it could be interpreted by States to permit registration requirements that could effectively eliminate, or seriously interfere with, the mail registration program of the Act. It could also adversely affect the administration of the other registration programs as well. In addition, it creates confusion with regard to the relationship of this Act to the Voting Rights Act. Except for this provision, this Act has been carefully drafted to assure that it would not supersede, restrict or limit the application of the Voting Rights Act. These concerns lead the conferees to conclude that this section should be deleted.
(H. Rep. 103-66 at 23) (emphasis added)]
As predicted by the conference report, the decision could eviscerate the organized voter registration and public assistance agency portion of the NVRA, as well as the mail-in provision for naturalized citizens who must produce original naturalization papers. Two parts of the NVRA, designed to assist poor people, could be substantially undermined while the one part that helps wealthier people remains in full force.
Individuals who do not have driver’s licenses usually do not carry around copies of their passports or birth certificates to give to a canvasser. They do not need documentation to apply for many public assistance benefits as an affirmation of citizenship is enough. They certainly will not give up original naturalization papers. Therefore, completing a voter registration application with a voter registration organization or public assistance agency is useless because the applicant must still provide proof of citizenship to election officials by mail or in person. Applicants for driver’s licenses, on the other hand, know that they are required to provide documentation of citizenship and, if they wish to register to vote, will be registered when they obtain their license.
The requirement to provide proof of citizenship will also make it difficult for the men and women of the armed forces serving overseas to register. If they do not have the appropriate documentation with them, they will have to obtain it before sending an application to election officials. This is virtually impossible for naturalized citizens, who have to produce the original document to the election official.
The case now moves to trial, where the voter identification and proof of citizenship requirements are being challenged under the Voting Rights Act and other Federal statutes. If necessary, it will then return to the 9th Circuit where plaintiffs have another chance to overturn the narrow interpretation of the NVRA. It is an uphill battle. This is especially true because even the Supreme Court has weighed in on the case. While not addressing the merits, the Supreme Court vacated the circuit court’s first injunction, finding that the state has an interest in protecting the voting rights of people who think there is voter fraud, even though there was no evidence of voter fraud.
In the meantime, voter advocacy groups should be vigilant in other states that may see the decision as an opportunity to suppress voter registration in minority and poor communities.