Arizona is entitled to demand that people present identification before being allowed to cast a ballot, the 9th U.S. Circuit Court of Appeals ruled Tuesday.
In a split decision, the judges rejected arguments that mandating would-be voters show a driver’s license or other identification unfairly discriminates against Latino voters. Judge Sandra Ikuta, writing for the majority, said while challengers made that claim they failed to present any credible evidence.
The court also brushed aside arguments that the requirement to provide identification, approved by voters in 2004, amounts to a poll tax.
But the judges said the state cannot strictly enforce another provision in that 2004 initiative which requires anyone who wants to register to vote to first provide acceptable proof of citizenship.
Ikuta pointed out that Congress mandated creation of a specific form designed to allow individuals to register to vote by mail. That form does not include a proof-of-citizenship requirement.
What that means, the judge said, is Arizona election officials have to register those people who sign up using that federal form, even if they do not provide the state-mandated identification.
Arizona remains free, however, to continue to demand proof of citizenship from those who go to state offices and register using a state-provided form.
Tuesday’s decision allowing officials to mandate ID at the polls was not unanimous.
Judge Harry Pregerson recited what he said is a long history of state-sanctioned discrimination against Latinos. He said this could be seen as just another form.
“History has also shown that when a Latino voter approaches the polling place but is stopped by a person perceived to be an authority figure checking for identification, there’s something intimidating about that experience that evokes fear of discrimination,” Pregerson wrote. “That intimidation has the effect of keeping Latino voters away from the polls.”
While the court upheld the voter ID language, Nina Perales, an attorney with the Mexican American Legal Defense and Educational Fund, said she sees the rest of it as a victory. She said it “vindicates all the U.S. citizens who were improperly rejected for voter registration” in the state.
“Arizona may no longer flaunt federal laws in voter registration, particularly in a manner that discriminates against newly naturalized citizens,” Perales said.
But Attorney General Tom Horne, who argued the case personally last year in California, said this is not the last word.
“We always expected the U.S. Supreme Court to have to decide this one,” he said. “The people of Arizona have a right to request that people registering to vote show some evidence they are citizens.”
That part of the ruling that Horne wants to appeal, however, may have little practical effect.
Chris Roads, the deputy Pima County recorder, said his office gets only one or two voter registration requests a month using the federal form. So far, in compliance with the 2004 law, they have been rejected if they do not also include proof of citizenship.
Roads said most registrations come through the state’s EZ Voter website. There, anyone who already has a state driver’s license issued after October 1996 — when proof of legal presence was required to get a license — can register to vote online.
But Perales told the court last year that in the first 2 1/2 years after the requirement was implemented, more than 31,000 people were denied registration because they did not provide the proof the state wants. Perales acknowledged, though, she could not say how many of those people were actually eligible.
At the heart of the multi-year legal fight is Proposition 200, that 2004 ballot measure, the first of a series of Arizona measures aimed at illegal immigrants.
That law was designed mainly to preclude those not in the country from getting public benefits. But it also included the two changes in voting laws that supporters said were necessary to ensure that only those entitled to cast a ballot would affect the outcome of elections.
Horne argued that the citizenship proof requirement was designed to prevent fraud.
“If there is voter fraud, then honest voters can lose faith in the democratic system,” he told the appellate judges. “And that can decrease participation by eligible voters.”
But they pointed out that Congress directed the Election Assistance Commission to create a standard federal voter registration form.
Judge Marsha Berzon said the commission concluded proof of citizenship was unnecessary, citing a requirement to sign an avowal of citizenship, coupled with the threat of federal prosecution. And federal law requires Arizona — and all other states — to accept and use the federal form.
Pregerson, in urging colleagues to strike the ID requirement to cast a ballot, said the state’s history makes any move that would seem to burden minority voters suspect.
For example, he said Arizona voters in territorial days passed a literacy law test that he said “explicitly targeted Mexicans and disqualified non-English speakers from voting” in state elections.
“As late as the 1960s, these literacy requirements were a precondition for voting in Arizona,” Pregerson wrote.
He also noted the Arizona constitution restricted non-citizens from working on public projects, with the 1914 Legislature mandating that 80 percent of employees in any firm with five or more workers had to be “native-born citizens of the United States.”
And Pregerson cited segregation in movie theaters, public parks and pools.
“A particularly notorious example of this segregation occurred in Tempe, where Latinos were only permitted to use the public swimming pool the day before the pool was drained,” he said.
All that, coupled with socioeconomic disparities between Latinos and Anglos as well as racially polarized voting “establish that Proposition 200’s polling place provision results in discrimination on account of race,” the judge said.