PASADENA, Calif. - The state's top lawyer will attempt Tuesday to save a key provision from the state's first voter-approved initiative aimed at illegal immigrants.
Attorney General Tom Horne will argue that Arizona can impose a requirement to produce proof of citizenship to register to vote. More to the point, Horne, who is arguing the case personally, contends the mandate does not run afoul of federal law.
But his interpretation of the federal law runs contrary to the majority ruling of a three-judge panel of the court last year which concluded what Arizona is doing is illegal. And one of the judges ruling against the state at that time was former U.S. Supreme Court Justice Sandra Day O'Connor, sitting in for the hearing.
At the heart of Horne's argument will be how to interpret the language of the federal law of what states must "accept and use" for voter registration.
The 2004 ballot measure, the first of a series aimed at illegal immigrants, was mainly designed to preclude those not in this country legally from getting public benefits. But it also included two changes in voting laws that supporters said were necessary to ensure that only those legally entitled to cast a ballot would affect the outcome of elections.
In a ruling last year, the three-judge panel of the 9th Circuit Court of Appeals said nothing bars states from requiring those who show up at the polls to show identification. But the majority said a requirement to prove citizenship at the time of registration is not permitted under the National Voter Registration Act.
That law mandated creation of a federal voter registration form which states must accept and use. And the form that law created does not include proof of citizenship but instead an avowal by a would-be voter, under penalty of perjury, that he or she is a citizen.
Tuesday, an 11-judge panel of the court will reconsider the issue. Horne said he will argue that the list in the federal law of what is allowed is not exclusive of what states are permitted to accept and use.
"When you go to the airport the airlines might say, ‘We accept and use E-tickets, you don't have to get a paper ticket,'" Horne said by way of example. "But when you get there, they're going to ask for photo ID."
As Horne sees it, the airline is accepting and using the E-ticket. But he said that does not mean it cannot also ask for other items.
"You also have to show photo ID or you don't get on the airplane," he said.
But Judge Sandra Ikuta, who wrote last year's majority decision, did not read the federal law the same way.
She said that Congress, in approving the law, sought to preclude states from "discriminatory and unfair registration laws and procedures" which could affect voter participation. And she pointed out the federal law says that the registration form "may not include any requirement for notarization or other formal authentication," language she said precludes proof of citizenship.
Potentially more significant, Ikuta - with O'Connor's concurrence - said the federal law "commands without exception that states shall accept and use the federal form." She said if states develop their own voter registration forms, they can only be used in addition to - and not a substitute form - using the federal form.
Horne is not relying entirely on the question of what "accept and use" means. He also will argue that, technically speaking, no one is required to actually provide proof of citizenship to register.
He said the way Arizona's voter registration form is set up, individuals need to fill in only the number on their Arizona driver's license or state-issued non-operator ID card to register. And naturalized citizens can put in the number on their federally issued naturalization papers.
"Therefore, the vast majority of registration applicants never have to submit a document," he wrote in his legal briefs.
Horne is fighting more than the Mexican American Legal Defense and Educational Fund on this. The Department of Justice weighed in with its own legal brief on how the Arizona law is preempted by the federal statute.
In his dissenting opinion last year, Alex Kozinski, the chief judge of the 9th Circuit, pointed out that a different three-judge panel, looking at exactly the same issue in 2007, unanimously upheld the Arizona law.
Ikuta, however, said that earlier ruling "was rooted in a fundamental misreading of the statute."
Both Kozinski and Ikuta will be members of the panel hearing the case Tuesday. O'Connor will not.
MALDEF attorney Nina Perales said having the full court hear the issue will enable it to issue a definitive ruling to reconcile the two conflicting ones. And Perales said she remains convinced that the full court will find the more recent decision - the one that went in her favor - persuasive.