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Arizona’s voter-registration law faces Supreme Court questioning

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Vetting voters

Arizona's Proposition 200 instructs elections officials to reject voter registration forms that do not include one of the following as proof of U.S. citizenship:

• Driver's license or nonoperating ID license

• Copy of a birth certificate

• Copy of a passport

• Naturalization documents

• Other documents cited in the Immigration Reform and Control Act of 1986

• Bureau of Indian Affairs or tribal treaty card number, or tribal enrollment number


Who can vote?

“Who Can Vote?” was produced by News21, a national investigative reporting project involving college journalism students across the country and headquartered at the Walter Cronkite School of Journalism and Mass Communication at Arizona State University. News21 is funded by the Carnegie Corporation of New York and the John S. and James L. Knight Foundation.

For the complete Voting Rights in America project, visit http://votingrights.news21.com.

WASHINGTON – The Supreme Court seemed split Monday over whether strict voter registration laws like Arizona’s are needed to prevent voter fraud, or whether they render a national voter law useless.

The justices sharply questioned both sides in the hearing over Proposition 200, a state law requiring proof of citizenship for voter registration, which exceeds federal requirements that prospective voters merely swear to their citizenship.

Arizona Attorney General Tom Horne argued at the hearing that since states have the burden of registering citizens to vote, they should be allowed to add to the federal form so they can verify applicants’ citizenship.

That was challenged by some justices who said that would give states power to unnecessarily complicate the federal form.

“That essentially creates a new set of requirements and a new form,” Justice Elena Kagan said.

“How do we draw the line?” she asked. “Where does the line get drawn between adding just your own form, and adding a new set of requirements?”

But Justice Antonin Scalia appeared to agree with Horne’s argument that the current federal law, which requires only a signature to register, is simply an honor system that is easy to abuse if states are prevented from requiring identification.

“If you’re willing to violate the voting laws, I suppose you’re willing to violate perjury law,” Scalia said.

Opponents of the Arizona law had argued that signing an oath that you are a citizen is the same as taking an oath to testify in a criminal trial and that it is sufficient to verify a person’s eligibility to vote. Requiring more than that disenfranchises many kinds of voters, they said, including minorities, elderly and young voters, and people who have recently moved from one state to another.

One such person is plaintiff SevaPriya Barrier, who said Proposition 200 prevented her from voting in Arizona after she moved to Tucson in 2010 from Arkansas.

Barrier said her registration was rejected by the state because she did not have an Arizona driver’s license yet. She did not have time to resubmit the form with other documents proving her citizenship, such as a birth certificate, passport or other documents.

“I hope the Supreme Court today recognizes that the Congress intended there be a simple registration process without state interference,” Barrier said Monday after the hearing.

Nina Perales, a lawyer with the Mexican American Legal Defense and Education Fund, said that signing a statement attesting to your citizenship is the “timeworn and traditional way of registering to vote.”

But Arizona Secretary of State Ken Bennett noted that hundreds of people every month refuse jury summons by claiming they are not citizens, even though their names were pulled for jury duty from voting rolls. That should be ample evidence there is a problem with the current system, he said.

“I think that makes the point very well why the citizens of Arizona passed, in Prop 200, the requirement that they show evidence of citizenship,” Bennett said.

While Horne and other proponents of the law argue voter fraud is common, a nationwide survey in 2012 by News21, a reporting project sponsored by a coalition of universities, found only seven confirmed cases on voter fraud in Arizona from 2000 to 2011.

Proposition 200 was approved by Arizona voters in 2004 and quickly challenged in court.

In the most-recent ruling, the 9th U.S. Circuit Court of Appeals said in April that voters could register using either the state form or the national form. The ruling allowed the state to continue handing out its own registration forms and requiring proof of citizenship, as long as the national form was offered to prospective voters as an alterative.

Even some of the court’s more conservative justices seemed to have trouble with different state and federal requirements. Justice Anthony Kennedy said that if states are allowed to add their own registration requirements, “The whole utility of the single form is missing.”

Justice Samuel Alito said the dual requirements seem “like a crazy system.”

“This is like the IRS creating two different tax returns,” Alito said.

Horne said he hopes the court will side with the state, but he did not predict how the justices will rule.

But Perales said she is confident that the court will uphold the right of Congress to set national standards for voter registration.