As part of a broader anti-immigration initiative in 2004, Arizona passed Proposition 200, a law requiring voters to provide proof of citizenship before registering to vote. One person affected by this law was Jesus Gonzalez, a custodian and naturalized American citizen who twice had his registration rejected by the state. Arizona couldn't verify his naturalization number and erroneously identified his driver's license as belonging to a non-citizen. Gonzalez's case has reached the Supreme Court, which heard oral arguments about the constitutionality of Proposition 200 on Monday. The Court should rule that Arizona's burdensome requirements are inconsistent with federal law and therefore illegal.
The Supreme Court has dealt with Republican legislators' attempts to suppress voting before. In a highly dubious 2008 decision, the Supreme Court found that an Indiana statute—requiring a show of ID before hitting the ballot box—was not unconstitutional on its face, although it left open the possibility that the statute might be unconstitutional as applied. (The Indiana law was ultimately struck down by the Indiana Court of Appeals.) Because the Arizona law concerns voter registration, it is subject to another form of legal challenge.
In 1993, Congress passed the National Mail Voter Registration (or "Motor Voter") Act, which among other things created a federal form that would streamline the registration requirements. The law mandates that "each State shall accept and use" the federal form. As the story of Jesus Gonzalez highlights, Prop 200 placed an additional set of requirements on Arizonans before they are able to register. The key question presented by the challenge to Prop 200 is whether the Arizona requirements are inconsistent with federal law. If so, because of the Supremacy Clause of Article VI of the Constitution, the Arizona law is "pre-empted" by the Motor Voter Act and is invalid.
The case for pre-emption in this case is clear and persuasive. The statute unequivocally requires states to use the federal form. To permit states to add additional burdens on registration is inconsistent with the text and purpose of the statute, which was designed to create a streamlined and uniform process. Determining qualifications for people voting for federal offices is a clear federal power. Justice Kagan observed at the oral argument that the Arizona law "essentially creates a new set of requirements and a new form." Prop 200, therefore, is at war with the federal statute whose purpose was to create a clear process for registration. As the Obama administration noted in its amicus brief, to uphold the Arizona law "would thwart the central purpose of [Motor Voter]: to streamline the process of registering to vote for federal office."
Justice Scalia, while somewhat more restrained than in the previous oral argument dealing with an Arizona law that conflicted with federal authority, was typically candid about his political support for the objectives of the Arizona vote suppression initiative. Leaving little doubt about his sympathy for the Arizona law, he mocked the federal registration requirements, which make it a criminal offense to misrepresent one’s eligibility to vote. “So it's under oath. Big deal.” Scalia snorted. “If you're willing to violate the voting laws, I suppose you're willing to violate the perjury laws.”
Scalia’s arguments are problematic for two reasons. First, whether or not Scalia thinks the federal requirements are sufficient is beside the point—Article I Section IV gives Congress the power to “make or alter” state voting regulations, so the judgment about what requirements are sufficient rests with Congress, not with Arizona or the Supreme Court. And even on its own terms his argument that the threat of a perjury conviction represents an insufficient deterrent is unpersuasive. Arizona provides no evidence that this kind of voter fraud is a problem. The problems of individual voter fraud the bill allegedly addresses are essentially non-existent, and even in theory it is impossible for individual fraudulent voters to alter the course of an election. And, in particular, it is extremely implausible to think that the illegal immigrants the bill targets are likely to risk attracting the attention of federal authorities by committing perjury on a form submitted to the federal government. It is hard to avoid the conclusion of one Arizona legislator that "was never intended to combat voter fraud. It was intended to keep minorities from voting."
Scalia also mocked the idea that the additional Arizona requirements represented a substantial burden. “Enclosing your driver's license number is that immense barrier?” he sarcastically asked Patricia Millet, the attorney representing the challengers. But the data proves Scalia is dead wrong to dismiss the extent of vote suppression caused by the initiative. "The district court," Millet pointed out, "found that 31,550 people were rejected from voting because of Proposition 200." This is a serious additional burden which shows that the inconsistency with federal law is not merely formal. The vote fraud Scalia and other Republicans are purportedly concerned with is imaginary, but the burdens created by the Arizona law are quite real.
Arizona's latest attempt to interfere with federal law is particularly problematic given that it concerns the right to vote. Voting is a field in which greater uniformity is a particular virtue. The fact that standards for registration and voting vary not only between states but within states represents "local control" fetishism at its most inane. State and local administration of voting isn't merely inefficient; the purpose and effect of this decentralization has been to disenfranchise poor and/or minority voters. In this case, Congress appropriately acted to create more uniform and streamlined standards for vote registration. Arizona should not be allowed to contradict federal law and invite other states to similarly disenfranchise voters.
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