State of Arizona et. al.
v.
The Inter Tribal Council of Arizona, Inc., et. al.

by Peter Laumann, Alliance for Justice Dorot Fellow

Oral Argument: March 18, 2013

National Voter Registration Act (NVRA) was passed by Congress 20 years ago to provide a standardized, simple way for Americans to register to vote in federal elections. The law provides for a form prospective voters can fill out and mail to state boards of elections. States are required to “accept and use” the form. The law also requires the form be made easily available in many offices, including Departments of Motor Vehicles. That’s how the law became known as the “motor voter” law.

The law also requires prospective voters to attest, under penalty of perjury, that they are United States citizens.

Arizona passed a law, Proposition 200, by referendum adding a requirement that Arizonans provide proof of citizenship.The law specified certain documents, documents that can be difficult for poor people, the elderly and new citizens to obtain. Several groups sued, challenging the right of Arizona to impose these new requirements. Lower courts agreed that the law should be struck down.

In Supreme Court oral arguments, the justices’ questioning largely revolved around two issues: the balance of federal and state authority to regulate federal elections, and whether the Arizona law’s requirements directly conflicted with the text of the NVRA.

» We also have expert commentary from Prof. Franita Tolson on our Justice Watch blog

The meaning of “accept and use”

 

 


Who you'll hear:

Arizona Attorney General Thomas Horne, Justices Sonia Sotomayor, Ruth Bader Ginsburg, Elena Kagan

In this excerpt, Arizona Attorney General Thomas Horne has barely begun his argument when Justices Sonia Sotomayor, Ruth Bader Ginsburg and Elena Kagan question him concerning the meaning of “accept and use.” At its base, if Arizona’s position is accepted, states would be free to impose limitless burdens on top of the NVRA’s simple form, and render the Act – and its underlying purpose – meaningless. The questioning here points to the conflict between Proposition 200 and the NVRA.

Federal and state authority

 


Who you'll hear:

Justice Antonin Scalia, Arizona Attorney General Thomas Horne

The Constitution gives the federal government the power to determine the “times, places and manner” of holding federal elections. Nevertheless, Justice Scalia felt that Arizona did not go far enough in demanding that potential voters send in proof of citizenship along with their federal form. In his questioning of Horne he indicated that Arizona should have demanded that the courts force the federal government to change the form itself. What Scalia is asking for is radical; a basic rule of judicial decisionmaking is that a court should decide the narrowest issue possible. Here, Justice Scalia is asking for the opportunity to sweep away federal authority to regulate elections, which is rooted in the explicit text of the Constitution.


Balancing needs

 


Who you'll hear:

Patricia Millett, Justice Antonin Scalia

In this excerpt, Patricia Millett, attorney for those challenging the Arizona law, argues that it was up to Congress to balance the need to streamline registration against the extremely low likelihood that noncitizens would risk deportation, and criminal charges of perjury, by fraudulently registering to vote. In the context of the NVRA, which governs federal elections, Congress has made the legislative judgment that there are sufficient procedures to ensure voter integrity. Arizona has imposed its own judgment in conflict with federal law and the Constitution, which gives states no power to preempt federal judgments in this area of law. Here, Justice Scalia questions Millett on the extent of the harm imposed by Arizona’s additional requirements.

Congress and the proof-of-citizenship requirement

 


Who you'll hear:

Justice Stephen Breyer, Patricia Millett

In this excerpt, Justice Stephen Breyer asks Millett about the fact that before passing the NVRA, Congress rejected the idea of requiring proof of citizenship. In setting a list of acceptable documentation that states may ask for, and rejecting an amendment allowing additional requirements to be imposed on registrants, Congress explicitly rejected laws like Proposition 200.