In a rebuff to state officials, the head of the federal Elections Assistance Commission has rejected Arizona's request to require proof of citizenship by those using a federal form to register to vote.
In a 46-page order late Friday, Alice Miller, the commission's acting director, said Congress was within its rights to conclude that those seeking to vote need not first provide documentary proof of eligibility. Miller said the affidavit of citizenship, coupled with criminal penalties for lying, are sufficient.
Friday's ruling is yet another significant setback for Arizona's effort to enforce the 2004 voter-approved law. The state had argued all the way to the U.S. Supreme Court it has a constitutional right to demand citizenship proof, only to be rebuffed last year.
But the justices, in their 7-2 ruling, said state officials were free to petition the EAC to add the requirement to the form. Friday's order forecloses that option.
Attorney General Tom Horne said Saturday he does not believe the legal fight is over. He intends to take the issue back to federal court.
“This bureaucrat is just a hoop we had to jump through,” he said of Miller's order.
Proposition 200 requires both proof of citizenship to register and identification to cast a ballot at the polls. Courts sided with the state on the ID at polling places requirement.
Foes of the Arizona law never appealed that decision, but they pursued the registration requirement, pointing out that the National Voting Rights Act, which directed the EAC to come up with a single national voter registration form, requires states to “accept and use” that form.
Horne argued that Arizona was accepting and using the federal form — but just simply adding its own proof-of-citizenship requirements on top. Justice Antonin Scalia, writing for the high court, said that argument makes no sense.
That sent Horne and Secretary of State Ken Bennett to Miller.
Miller acknowledged there was some evidence of non-citizens registering. For example there was the testimony of a Maricopa County election official who said 159 cases of potential fraud had been referred to the county attorney.
Most of these were from people who, responding to orders to appear for jury duty, responded they were not citizens. Felony charges were brought against 10 for filing false voter registration forms.
Miller said the fact these people were caught proves there is no need for citizenship proof on registration form. More to the point, she said even if what was presented to her is correct, that hardly shows the need for an additional hurdle.
“Arizona's evidence at most suggests that 196 of 2,706,223 registered voters, approximately 0.007 percent, were unlawfully registered noncitizens around the time that Proposition 200 took effect,” she wrote.
Miller said allowing Arizona to require proof of citizenship at time of registration “would thwart organized voter registration programs.” That's because people do not always carry around documents that Arizona considers acceptable proof of citizenship.
She said that runs afoul of what Congress wanted in mandating a federal form to “facilitate voter registration drives.”
Horne, however, said he still thinks he can convince federal courts — and, ultimately, the U.S. Supreme Court — there is a legitimate reason for Arizona to demand proof of citizenship. He pointed out that Silver, in her 2008 ruling that was later voided by the Supreme Court, found there was evidence from Pima and Maricopa counties that people who were not citizens had registered to vote.
“Proposition 200 enhances the accuracy of Arizona's voter rolls and ensures that the rights of lawful voters are not debased by unlawfully cast ballots,” Silver wrote in her 2008 opinion.
The judge acknowledged there was data showing the law has a slightly harsher impact on Hispanics and American Indians than it does on others. But the judge said the overall effect of that was so minimal as to be virtually insignificant.
Since the Supreme Court ruling, Bennett has directed county election officials to separate their federal election ballots from state and local races to keep those who cannot prove citizenship from voting in the latter.
That is based on Horne's contention that the court ruling — and now the EAC decision — rejecting the need for proof of citizenship applies only to elections for federal offices like the president and congressional races. Horne said that frees Arizona to apply its proof-of-citizenship mandate for anyone who wants to vote for anything from governor on down the ballot.