Posted on 04/20/2012 8:53:49 PM PDT by neverdem
Arizona might be going to the U.S. Supreme Court yet again. A federal appeals court upheld part of the Grand Canyon State’s voter-ID law, but struck down another part of Arizona’s law as inconsistent with a 1993 federal law. This might become the third citizen/voting Arizona law to go to the Supreme Court in just three years.
Arizona allows for citizens to adopt ballot propositions with the force of law, which trump state statutes but fall short of amending the Arizona Constitution. Arizona’s voters adopted Proposition 200 in 2004. It requires showing proof of citizenship when you register to vote, and then showing government-issued photo-ID on Election Day when you cast your ballot.
Several individuals and groups sued, arguing that these requirements violate two provisions of the U.S. Constitution and also the National Voter Registration Act of 1993 (NVRA), which had been passed by a Democrat-controlled Congress and signed by Bill Clinton. After years of litigation, the case was decided by the U.S. Court of Appeals for the Ninth Circuit.
Although federal appeals are heard by three-judge panels, on rare occasions the full appeals court will reconsider a panel decision in what is called an en banc rehearing. The Ninth Circuit is so large (almost thirty active-service judges) that when it does an en banc rehearing the court’s chief judge hears it, along with ten other judges chosen at random. They took this unusual step in this case, Gonzalez v. Arizona.
Judge Sandra Ikuta—appointed by George W. Bush—wrote the majority opinion. In 2008 the Supreme Court upheld Indiana’s voter-ID law in Crawford v. Marion County Election Board in a 6−3 decision. Arizona’s law is similar to Indiana’s, so the Court upheld it easily, holding that Arizona’s law is consistent with the U.S. Constitution.
Not so the provision requiring people show proof of citizenship when registering. The traditional way to register is by filling out a state form at your county courthouse or county building. NVRA created two new ways a person can register to vote in federal elections. One is by filling out the state form at your local Department of Motor Vehicles office, and the third is by filling out a federal form at home and submitting it by mail. The plaintiffs in the Gonzalez case used the federal form—which makes you declare that you are an American citizen but does not ask for proof—and says that Arizona’s law violates NVRA.
The general rule is that when a federal and state laws conflict, federal law wins. This almost always happens under the Supremacy Clause of the Constitution. But election law issues arise under the Elections Clause of the Constitution, which says that states have primary responsibility for conducting elections but that “Congress may at any time by Law make or alter such [state] Regulations.”
The Supreme Court has previously held that the Elections Clause sets a higher bar for states than the Supremacy Clause. To respect state sovereignty, courts presume a state law is not preempted by federal law under the Supremacy Clause unless Congress makes explicitly clear that it wants to trump the states. If that were the rule in Gonzalez, then Arizona’s law would win on both issues in this case.
But the Supreme Court has not to date applied that same rule to election laws. Instead, it has said that federal election law automatically displaces state election laws. So even though there is a way to make Arizona’s statute coexist alongside NVRA, the Ninth Circuit held that Arizona’s citizenship-proof requirement must go.
Chief Judge Alex Kozinski joined the majority, but also wrote a separate concurring opinion. In it Kozinksi observed that, “the Supreme Court has never articulated any doctrine of giving deference to the states under the Elections Clause… A case such as ours, where the statutory language is unclear and the state has a compelling interest in avoiding fraudulent voting by large numbers of unqualified electors, presents a far more suitable case for decide whether we should defer to state interests. But only the Supreme Court can adopt such a doctrine.”
So the messy split here, with some judges voting to strike down one provision, others voting to uphold both, and others voting to strike down both, might make this a tempting case for the Supreme Court to take. The fact that Kozinski—a libertarian appointed by Ronald Reagan and one of the most brilliant judges on the entire federal bench—wrote that only the Supreme Court can reorient the Elections Clause, and that it should do so here, increases the odds that the justices will take the case.
In the end, this was an important win for voter-ID laws. And if the justices take this case it could become a broad-based win that would strengthen state sovereignty and diminish centralized federal control of the democratic process on Election Day. That would be a welcome development.
Editor's Note: This column was co-authored by Ken Klukowski, a fellow with the American Civil Rights Union and faculty member at Liberty University School of Law.
It’s pretty bad when you have to go to federal court to fight for a law that you had to put into place because the federal government refuses to do its job. The states should just tell the feds to take a hike. The feds are pretty much just a shakedown racket anymore, bent on trying to controlling everything they can get their dirty hands on.
a good law is challenged annually
but a leftist law.... is “settled law”
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But the court was not convinced by Arizona's arguments in favor of Proposition 200's proof of citizenship requirement.
"In sum, the NVRA and Proposition 200's registration provision ... do not operate harmoniously as a single procedural scheme for the registration of voters for federal elections," Ikuta wrote.
"Therefore, under Congress's expansive Elections Clause power, we must hold that the registration provision ... is pre-empted by the NVRA" when a when a voter seeks to register for a federal election.
Register to Vote | The U.S. Election Assistance Commission (EAC)
The National Mail Voter Registration Form can be used to register to vote, to update your registration information due to a change of name, make a change of address or to register with a political party. Note: After filling out this form, you must send it to a state or local election office for processing. See state-specific instructions included in the form for additional information.
The progressives slipped one in on us when they passed the NVRA. It seems simple enough to me how this can be corrected. Congress needs to change all NVRA forms to include a proof of citizenship requirement.
Thanks for the ping!
In the event that we are not able to force the Fed’s hand it might be a very good idea to go ahead and create a system for printing specifically designed & printed Federal ballots that only includes the elections for the 3 Federal offices of Congressional House, Senate, and President.
Then when anyone registers under the federal rules give them the federal ballot only.(limit the disfranchisement). Also if the Feds do go to a popular vote system It might serve the State to setup non-registration rules(allowed under the 1993 act AKA: “motor voter fraud”), so that people can vote as many times as they like in the “Federal elections” thus greatly amplifying the states impact. lol
This would be one way to not only undermine the legitimacy of the Federal Government in the eyes of the people but the leftist efforts to create a “national popular vote”.
But it starts with having & using a separate federal ballot for people who refuse to follow proper identification and State citizenship verification rules.
If the feds refuse to hold up their end of the bargain, according to Constitutional law, then it is up to the individual states to do the job, and the feds have no say in the matter, and no recourse. The US Constitution is a binding contract between the people, and the elected official. If they don’t perform, they are OUT!.
If they don’t preform then the Federal Constitution is clearly not a binding contract. At least not binding upon them.
As for who the contract is between it is between the Federal government and 50 states.
Of course if you want to split hairs, then as Madison later put it the people and their States are somewhat one in the same from the point of view of the Federal government.
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