State officials will get another chance to argue they have a legal right to require would-be voters to prove they are citizens.
In a brief order Wednesday, the full 9th U.S. Circuit Court of Appeals agreed to a request by attorneys for Arizona to reconsider a 2010 ruling by a three-judge panel that the requirement, mandated by voters in 2004, runs afoul of the federal National Voter Registration Act. That law spells out what states can and cannot require for someone to vote in federal elections.
Secretary of State Ken Bennett said he’s pleased with the decision. He thinks there is a good chance that a full 11-judge panel would reach a different conclusion.
Bennett pointed out that a different three-judge panel, looking at the exact same issue in 2007, came to the exact opposite conclusion. And he pointed out that the dissent in last year’s ruling was written by Alex Kozinski, the chief judge of the court.
But Nina Perales, attorney for the Mexican American Legal Defense and Education Fund, said she sees the decision by the full court to revisit the issue as good news.
She said it provides the opportunity for the full court 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.
Whatever happens at the hearing later this year is unlikely to be the final word: Whoever loses will seek review by the U.S. Supreme Court.
Hanging in the balance is what documents, if any, someone who wants to register to vote needs to provide.
That 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.
One provision requires proof of citizenship when registering. The other says people who show up at the polls must provide identification.
Various groups representing Hispanics and Native Americans sued, saying the requirements amount to illegal racial discrimination. A trial judge rejected those arguments.
In its ruling last year, the three-judge panel of the 9th Circuit upheld the need to provide ID at the polls. But Judge Sandra Ikuta, writing for the majority, said the proof-of-citizenship requirement runs afoul of the National Voter Registration Act.
Ikuta said that Congress, in approving the law, sought to preclude states from “discriminatory and unfair registration laws and procedures’’ which could 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 those attempting to register to be informed of all requirements, including citizenship. And new voters must attest, under penalty of perjury, that they meet the conditions.
But Ikuta pointed out the federal law says that registration form “may not include any requirement for notarization or other formal authentication,’’ language she said precludes proof of citizenship.
Bennett has poked fun at that logic, saying that’s like saying someone could board a plane without ID simply by signing a certificate “saying that ‘I am not a terrorist, I promise I don’t have any explosives in my underwear.’ ‘’
Kozinski said he could not go along, citing the 2007 ruling as precedent.
Ikuta, however, said that earlier 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.
But Ikuta had former U.S. Supreme Court Justice Sandra Day O’Connor, who was acting as an appellate judge, on her side.
MALDEF never appealed the other half of the ruling — the one requiring ID to cast a ballot — that went against the organization.
No date has been set for a hearing.