A federal appeals court on Tuesday threw out a state mandate for people to provide proof of citizenship before being allowed to register to vote.
In a divided decision, the majority of the three-judge panel of the 9th Circuit Court of Appeals concluded the requirement, approved by Arizona voters in 2004, runs afoul of the federal National Voter Registration Act. That law spells out what states can and cannot require to vote in federal elections.
Judge Sandra Ikuta, writing the majority decision, specifically concluded that the requirement to produce one of a list of specified documents proving citizenship is on that list of what is not allowed.
That conclusion drew derision from Secretary of State Ken Bennett, who oversees elections and who said the proof is necessary to protect the integrity of elections.
"If you buy that argument, then I assume they are going to let us go through airports signing a certificate saying that 'I am not a terrorist, I promise I don't have any explosives in my underwear,' '' Bennett said. He vowed an appeal to the U.S. Supreme Court.
Sen. Russell Pearce, R-Mesa, who crafted the 2004 measure, said the ruling "flies in the face of common sense.''
"It should go without saying that states have the right to ensure that only citizens vote,'' he said.
Nina Perales, an attorney with the Mexican American Legal Defense and Educational Fund, one of the groups that sued, said there are parallels between this case and the more recent challenge to the state's new immigration law. In both cases, she said, judges have struck down efforts by Arizona to usurp federal authority.
"What the federal courts have done consistently now, recently, is told Arizona that these schemes that it's coming up with, whether it's voter registration schemes or whether they're immigrant regulation schemes, are outside the bounds, and that Arizona has to comply with the superseding federal law,'' she said.
Tuesday's decision comes less than a week before the 9th Circuit hears arguments about whether a federal judge correctly enjoined the state from enforcing that new immigration law. And in December the U.S. Supreme Court will review a different Arizona law allowing the state to suspend or revoke the business licenses of firms found guilty of knowingly hiring undocumented workers.
Nothing in the decision will affect Tuesday's election, as the deadline to register to vote was Oct. 4.
The new ruling split the three-judge panel.
Siding with Ikuta was retired U.S. Supreme Court Justice Sandra Day O'Connor, who was sitting in as an acting appellate judge. Judge Alex Kozinski dissented, arguing that the full 9th Circuit reached a different conclusion three years ago.
But Ikuta said that 2007 ruling "was rooted in a fundamental misreading of the statute.'' She said it was based on the premise that Arizona could either accept the federal registration form created under the NVRA, which does not require proof of citizenship, or develop its own.
"The NVRA commands without exception that states 'shall' accept and use the federal form,'' Ikuta wrote. "And if they develop their own form, it can only be used 'in addition to' accepting and using the federal form.''
While striking down the proof-of-citizenship requirement, the court let stand the other key provision of the law which require people to provide identification before being allowed to cast a ballot.
The registration and voter ID requirements were part of a larger measure approved in 2004 which bars those not in this country legally from getting certain benefits. But it also included the changes in voting laws that supporters said were necessary to ensure that only those legally entitled to vote will affect the outcome of elections.
Various groups representing Hispanics and Native Americans sued, saying the requirements amount to illegal racial discrimination. But U.S. District Court Judge Roslyn Silver, in a 2008 ruling, rejected the challenges.
She said while requiring proof of citizenship makes the process more cumbersome, it has not prevented most people from completing the process. She also said the inconvenience of having to gather the required documents "does not qualify as a substantial burden on the right to vote, or even represent a significant increase over the usual burdens of voting.''
Ikuta, in Tuesday's ruling, said the U.S. Constitution gives the federal government control over voting procedures for national elections and lets Congress supersede any state election laws. She said Congress specifically approved the NVRA to preclude "discriminatory and unfair registration laws and procedures'' which can affect voter participation.
That law mandated creation of a federal voter registration form which may require "only such identifying information ... as is necessary to enable the appropriate state election official to assess the eligibility of the applicant and to administer voter registration and other parts of the election process.''
It also requires that those attempting to register be informed of all requirements, including citizenship; new voters must attest, under penalty of perjury, that they meet the conditions.
But Ikuta noted the law says the form "may not include any requirement for notarization or other formal authentication,'' language she said precludes proof of citizenship.
Technically speaking, the ruling covers only registration to vote in federal elections. But Arizona has a single registration process to vote for not only the president and members of Congress but also the governor, legislators and other state and local officials.
Bennett said that would make it theoretically possible for the state to keep the citizenship requirement for those state and local elections if the Supreme Court does not overturn this ruling. But Perales said any effort by Arizona to create a state-only registration process with a proof-of-citizenship requirement could run afoul of other federal laws which prohibit states like Arizona, with a history of discrimination, from altering procedures in any way that would impair minority voting.
Pearce criticized "activist judges ignoring the rule of law. And he singled out O'Connor, an Arizona native, for special criticism.
"It is particularly disturbing that retired Justice O'Connor, who seems more and more like a politician these days, signed onto a decision that could undermine the integrity of our elections,'' he said.