PHOENIX — Arizona is renewing its bid to let election officials here demand proof of citizenship from everyone registering to vote, paving the way for yet another lawsuit.
In a letter to the acting executive director of the Election Assistance Commission, state Attorney General Tom Horne demanded that she allow Arizona to require that those registering to vote using a commission-designed form first show they are citizens. Horne told Alice Miller he expects action by Aug. 19 or he will sue.
But Nina Perales, an attorney with the Mexican American Legal Defense and Education Fund, said Horne should not expect approval.
She said the commission staff rejected an identical request in 2005, a decision left intact by a 2-2 vote of the panel itself. And Perales insisted nothing has changed since then.
Horne said if that happens he will seek court review.
The fight concerns a 2004 voter-approved measure which requires both proof of citizenship to register and identification to cast a ballot at the polls. Foes challenged both.
A trial judge sided with the state on the ID at polling places requirement. Foes of the Arizona law never appealed that decision.
They also did not dispute that Arizona can demand citizenship proof from those who register using a state-designed form, or while renewing a driver's license.
But they pointed out that the National Voter Registration Act requires states to “accept and use” a federal form authorized by Congress and designed by the commission. That form instead requires only that applicants sign an affidavit swearing they are citizens and eligible to vote.
The Supreme Court, in a 7-2 ruling, sided with challengers. But the justices did say Arizona remains free to ask the commission — again — to add the proof of citizenship requirement to the federal form it designed for Arizona.
Secretary of State Ken Bennett made such a request within days of the Supreme Court ruling. With no response yet, Horne demanded a response — and soon.
One problem Horne may have is that the four-member panel has no members, with the president and Congress not having filled the vacancies. Horne said he is unconcerned, saying that Miller is empowered to act.
A procedure put in place by a prior director allows that person to approve any state's request to modify the registration form in the absence of a quorum. But it also says that any request which raises “broad policy concerns” for multiple states will not be acted on unless and until there again is a quorum.
Even if Miller does act, Perales said she doubts Miller will rule any different than the staff did in 2005. She said that original 2005 decision was based on the conclusion by the staff that allowing Arizona to add a proof-of-citizenship requirement to the federal registration form violates the National Voter Registration Act.
“Arizona can go back to the EAC,” she said. “Arizona can ask for reconsideration. Arizona can ask for a different decision.”
But Perales said as long as the NVRA reads the way it does, she does not expect the commission's ruling to change.
Perales also said there is no evidence to support Arizona's contention that the citizenship proof requirement is necessary to protect the integrity of the voting process. She said the state has not cited a single instance where someone who used the federal registration form was later found to be ineligible by virtue of not being a citizen.
Horne said he will go to court if the commission rebuffs the state. But Perales said she is unsure whether Arizona even has a right to appeal this kind of decision. She said court review is appropriate only if someone can show that the commission acted outside of its legal authority, something she said is not at issue here.
Even if it gets into the court system — and back to the Supreme Court — Horne may still find a majority of the justices hostile to what Arizona wants to do.
In his majority ruling, Justice Antonin Scalia said Congress directed the commission to come up with a specific federal registration form to ease the process. He said that would be thwarted if Arizona were allowed to demand that those using that form to provide everything the state registration form requires.
“If that is so, the Federal Form ceases to perform any meaningful function, and would be a feeble means of increasing the number of eligible citizens who register to vote in elections for federal office,” Scalia wrote.