Ninth Circuit Confused Over Proof Of Citizenship As A Voter Registration Requirement

In 2004, Arizona voters approved Proposition 200, which included two fundamental changes in Arizona law to ensure voter integrity: 1) a voter identification requirement very similar to Indiana's Voter I.D. law; and 2) a requirement that persons who apply to become registered voters produce proof of their citizenship. As proof of citizenship, a voter applicant could furnish with his or her voter application any of the following: a valid Arizona driver's license number; a birth certificate; a passport; a naturalization certificate; or other documents or methods of proof permitted under federal immigration laws. The 9th Circuit Court of Appeals in 2007 affirmed a district court order denying a preliminary injunction against enforcement of the new law. In Gonzalez v. Arizona 200, the Ninth Circuit rejected plaintiffs claims that the proof of citizenship requirement constituted an impermissible poll tax pursuant to the 24th Amendment or severely burdened a person's right to vote. More specifically, the Ninth Circuit found the additional requirement did not violate the National Voter Registration Act ("NVRA"). In finding NVRA did not prohibit the states from requiring additional documentation requirements, the Court wrote:

The language of the statute does not prohibit documentation requirements. Indeed, the statute permits states to “require[ ] such identifying information ․ as is necessary to enable ․ election official[s] to assess the eligibility of the applicant.”  Id. at § 1973gg-7(b)(1).   The NVRA clearly conditions eligibility to vote on United States citizenship.   See 42 U.S.C. §§ 1973gg, 1973gg-7(b)(2)(A).   Read together, these two provisions plainly allow states, at least to some extent, to require their citizens to present evidence of citizenship when registering to vote.

The 2007 decision by the Ninth Circuit was a unanimous en banc opinion, which would seem to make it the law of the circuit. The district court eventually granted Arizona's summary judgment motion in favor of enforcement of the law relying on the Ninth Circuit's decision finding the law did not constitute a poll tax or violate NVRA. The plaintiffs appealed the district court's determination and today a three-judge panel  in a split decision rejected not only the law of the circuit  established by the first Gonzalez decision but the law of that very case to find NVRA's requirements superseded state law and did not permit Arizona to require additional documentation from voter applications as proof of citizenship. Adding to the oddity of the decision, retired Supreme Court Justice Sandra Day O'Connor joined the decision, sitting by designation, written by Judge Sandra Ikuta. Judge Alex Kosinski offered a stinging dissenting opinion in the case. Judge Ikuta's decision viewed the earlier decision as "statements made in passing" and, therefore, not binding precedent on the circuit, an exception to the so-called law of the circuit rule. She also determined the earlier ruling had been made in "clear error", an exception to the law of the case rule.

[T]he NVRA does not give states freedom “either” to accept and use the Federal Form “or, in the alternative,” develop their own form. Rather, the NVRA commands without exception that states “shall” accept and use the Federal Form, and if they develop their own form, it can be used only “in addition to” accepting and using the Federal Form, and still must meet all of the criteria of Section 7 [of NVRA]. Thus, while Section 4 of the NVRA applies the limitations of Section 7(b) to the states wi]th respect to the creation of their own state forms, nothing in the text or structure of either provision supports reading Section 7(b) as giving the states any authority over or discretion to modify the Federal Form. Insofar as the prior panel referred to portions of the NVRA that relate to the Federal Form, those excerpts are directed solely at the EAC, not the states. See § 1973gg-7(a)-(b). These provisions cannot be said to “plainly allow states . . . to require their citizens to present evidence of citizenship when registering to vote” for federal elections via the Federal Form. [citations omitted]

That conclusion brought a strong rebuke from Judge Kosinksi, who wrote in his dissenting opinion:

As the majority belatedly acknowledges 47 pages into its opinion, we don’t come to this case with a blank slate. A prior panel has already held in a published opinion that Proposition 200 isn’t preempted because the National Voter Registration Act (“NVRA”) “plainly allow[s] states, at least to some extent, to require their citizens to present evidence of citizenship when registering to vote.” Gonzalez v. Arizona, 485 F.3d 1041, 1050-51 (9th Cir. 2007) (“Gonzalez I”). That is law of the circuit and therefore binding on us. See, e.g., Miller v. Gammie, 335 F.3d 889, 899-900 (9th Cir. 2003) (en banc). Even if it weren’t, it’s law of the case and can’t be lightly disregarded for that reason. See, e.g., Merritt v. Mackey, 932 F.2d 1317, 1322 (9th Cir. 1991). The majority refuses to accept the consequences of this reality. First, it evades law of the circuit by creating an exception that is squarely foreclosed by a recent unanimous en banc opinion. The majority then weakens our rules governing law of the case by declaring that Gonzalez I’s interpretation of the NVRA is “clearly erroneous” when it’s clearly not. Because I believe that we must take precedent seriously and that Gonzalez I was correctly decided, I dissent from the majority’s conclusion that the NVRA preempts Arizona’s voter registration requirement . . .

The majority distorts two major areas of law before it even reaches the merits. It creates an unprecedented exception to our law of the circuit rule, trampling underfoot a newly minted en banc opinion. The majority also makes a mess of the law of the case analysis by taking issue with a prior panel’s reasoning, not its conclusion. And, as to the merits, the panel comes nowhere close to proving that Gonzalez I’s interpretation of the National Voter Registration Act was wrong, much less clearly wrong. Few panels are able to upset quite so many apple carts all at once. Count me out.

I expect the Supreme Court will get the final say on this matter before it's all done and said. I would hope the Supreme Court would not interpret NVRA as frustrating the rights and responsibilities of state and local election authorities to ascertain the citizenship status of voter applicants to ensure only citizens are exercising the fundamental right to vote. Then again, there is already a movement afoot in this country to allow non-citizens to vote in our elections. Chicago already allows non-citizens to vote in school board elections and some states are considering measures to loosen voting requirement to allow non-citizens to vote in local elections.

Indiana law does not require voter registration applicants to produce any proof of citizenship; rather, it relies on the attestation of the applicant that he or she is an eligible voter. There has been a growing problem of non-citizens becoming registered voters in this country after the enactment of the NVRA and the requirement that state license branches and welfare offices offer the opportunity to register to all customers and clients. I've always that it was rather silly to require a Voter ID requirement if you aren't even going to bother to ascertain whether the person is a citizen before registering them to vote.

UPDATE: The Arizona Republic has a story about yesterday's decision by the Ninth Circuit. Here is how the current registration process is explained in the story:

Arizonans can register to vote with either the federal or the state registration form.

For the state forms, they are required to provide information from one of the following documents: a driver's license, passport, birth certificate or a tribal identification or naturalization certification number.Voters who register online must provide driver's license numbers, which are run through MVD's system.

Maricopa County Director of Elections Karen Osborne said it takes five to six seconds to verify the citizenship status of a person who provides his or her naturalization certification number because the elections department's system is connected to the U.S. Department of Homeland Security.

Those registering with the federal form must provide a driver's license number or the last four digits of his or her social security number, said Matt Benson, a spokesman for the Secretary of State's Office. However, Benson said a Social Security number is not sufficient enough to prove citizenship.

So if the County Recorder's Office finds the provided information is insufficient, they will try to contact the applicant to provide additional proof of citizenship.

If legal appeals to Tuesday's ruling are unsuccessful, the state would have to amend its voter-registration form to match the federal version, Benson said.

Arizona's Secretary of State Ken Bennett tells the Republic the state will appeal the decision all the way to the Supreme Court if necessary. The story also sheds light on how Arizona's driver's licenses are coded to indicate whether a licensed driver is a citzen or non-citizen:

The law particularly affected newly naturalized U.S. citizens whose voter registrations were rejected because they received their driver's licenses when they were green-card holders, Perales said. They would provide their license numbers, but they were still coded as non-citizens through the Arizona Department of Transportation's Motor Vehicle Division, she said.

When new citizens' registrations are rejected, they have to take extra steps to photocopy their birth certificates or naturalization forms, and people might give up trying to register, she said.

State officials who support the proof of citizenship say the requirement helps make sure there is no election fraud. "I think the decision by the 9th Circuit is an outrage, and I think it's a slap in the face to Arizonans who are concerned about the integrity of our elections," Secretary of State Ken Bennett told The Republic.

Bennett said voter registration has not decreased since 2004. There were 2.6 million registered voters in Arizona in 2004, and there are 3.14 million voters registered for this year's election, he said.

Bennett's recitation of the voting registration numbers showing a large increase in the number of registered voters following the enactment of Proposition 200 is a testament to the fact it has not worked to disenfranchise voters as opponents of these voter security laws are reknowned for claiming.