Arizona's attorney general on Monday told the U.S. Supreme Court that states could demand more proof of citizenship than federal law does to determine who is eligible to vote.
The justices heard arguments in the closely watched case of Arizona v. The Inter Tribal Council of Arizona in which Arizona Attorney General Thomas Horne defended the state's so-called Proposition 200 from claims that it conflicts with the National Voter Registration Act.
Arizona's challenge is the second voting rights case being heard by the justices this term. In February, the court heard arguments in Shelby County, Ala. v. Holder, challenging the constitutionality of Section 5 of the Voting Rights Act. Both cases have as their backdrop serious voting problems and accusations of vote suppression during the 2012 elections.
The National Voter Registration Act, passed by Congress in 1993, directs the U.S. Election Assistance Commission to create a national uniform voter registration form that applicants can use to register by mail or in person. The federal form asks applicants if they are U.S. citizens and if they are 18 years old or will be by Election Day. It requires applicants to attest to their eligibility with their signatures. The law requires states to "accept and use" the federal form, but also allows states to create their own registration forms but those cannot conflict with the federal one.
"The federal government can prescribe the form, but it can't make it exclusive," argued Horne, explaining that the federal law contemplates the traditional role of the states in determining voter eligibility. An applicant's signature attesting to eligibility, he added, is "not a sufficient way of testing eligibility."
In 2004, Arizona voters approved Proposition 200, which added a requirement for proof of citizenship to voter registration. The state law requires applicants to provide a driver's license number, a nonoperating identification number, a birth certificate or passport, a certificate of naturalization number or a number associated with membership in a Native American tribe.
Although the Election Assistance Commission rejected Arizona's request that its citizenship requirement be included as state-specific instructions on the federal form, the state implemented the requirement. Following a legal challenge, a panel of the U.S. Court of Appeals for the Ninth Circuit (with retired Justice Sandra Day O'Connor sitting) ruled that the state requirement conflicted with federal law and was pre-empted under the Constitution's elections clause.
During Monday's arguments, Horne fielded skeptical questions from a number of justices who focused on the meaning of the federal law's requirement that states "accept and use" the federal form.
"Congress did specify how citizenship was to be managed," said Justice Ruth Bader Ginsburg, noting the signed attestation. And the lower court held that the form must be used, not added to with other requirements, she said.
Horne said someone can accept and use a form without the form being sufficient for a particular purpose. He gave the example of an airline e-ticket being accepted and used for flying while the government still requires official identification. However, a paper ticket is not required in addition to the e-ticket, countered Justice Elena Kagan, and she suggested that Arizona's requirement creates a new federal form.