PHOENIX — Attorneys for four Arizona groups involved with voter registration are trying to get a federal judge to kill a bid by Secretary of State Ken Bennett to require proof of citizenship from all who register to vote.
Nina Perales of the Mexican American Legal Defense and Educational Fund said the U.S. Supreme Court ruled earlier this year that Arizona cannot enforce its documentation requirement on those who use a special registration form crafted by the federal Election Assistance Commission.
“The interest that these Arizona organizations have is in protecting their victory that they just won,” Perales said. She said Bennett'a lawsuit “is essentially trying to make an end-run around the U.S. Supreme Court decision.”
But Bennett said all he is doing is following a roadmap the high court provided when it ruled against Arizona in June.
He noted the justices said Arizona is free to ask the Election Assistance Commission to revamp its registration form to include a proof-of-citizenship requirement when individuals seek to vote in Arizona. More to the point, the justices said if the EAC refuses — which is what its executive director did — Arizona is free to sue and, if necessary, bring the case back before them.
Bennett said that's exactly what he is trying to do.
The fight surrounds a 2004 voter-approved measure which requires proof of citizenship to register and identification at the polls. Courts sided with the state on the ID requirement.
The Supreme Court ruled in June that Congress specifically empowered the commission to design a national voter registration form. It does not require documentation to prove citizenship but instead only that those registering swear they are eligible to vote under penalty of perjury.
The court, however, did leave that option of petitioning the commission for a change.
When that was rejected, Bennett joined with Kansas Secretary of State Kris Kobach to get a court order to force the commission to alter its forms. Kansas has a similar proof-of-citizenship requirement.
Perales said the groups she represents are not willing to leave defense of the form as is to commission attorneys. They include Chicanos Por La Causa, Valle del Sol, the Southwest Voter Registration Project and Common Cause.
In her legal filings, Perales said these groups rely on having voter registration forms at their offices and in community-based registration drives.
The Supreme Court's ruling did not disturb the requirement that those who register using the state's own form provide proof of citizenship. She said that is why these groups want the option of using the federal form, saying that a proof requirement would “entail significant burdens for many citizens who lack the documentation required.”
Arizona law does allow a driver's license issued after 1996 to be used as proof.
But Perales quoted Debra Lopez who has been involved with Latino Vote Project, who said that those who do not have a license will be required to produce something else proving citizenship. And that would require Lopez to bring a copy machine to registration events “which is both a logistical obstacle and an expenditure of resources that some of the organizations she has worked for can ill afford.”
Perales also brushed aside Bennett's argument that the Supreme Court essentially invited Arizona to sue to force the Election Assistance Commission to change the registration form.
Perales said Arizona did petition the commission to change its form, twice, after the 2004 initiative was approved.
“They got their answer, which was the kind of change Arizona was trying to get was not allowable under the National Voter Registration Act,” she said. “Arizona is trying for a third bite at the apple.”
Issues of voter rights aside, Perales has another legal argument to get Bennett's case thrown out.
She noted that his lawsuit is combined with the one filed by Kobach in federal court in Kansas. She noted that state's attorney general is not part of the lawsuit, making it illegal for Kobach to sue on behalf of the state.
If Kobach cannot sue, there is no right for a federal judge in Kansas to rule on the issue.
Bennett said he is aware of that argument. And he said that, if necessary, he would refile the case in federal court in Arizona where he does have the consent of Attorney General Tom Horne.