WASHINGTON -- The Supreme Court will struggle this week with the validity of an Arizona law that tries to keep illegal immigrants from voting by demanding all state residents show documents proving their U.S. citizenship before registering to vote in national elections.
The high court will hear arguments Monday over the legality of Arizona's voter-approved requirement that prospective voters document their U.S. citizenship in order to use a registration form produced under the federal "Motor Voter" voter registration law that doesn't require such documentation.
This case focuses on voter registration in Arizona, which has tangled frequently with the federal government over immigration issues involving the Mexican border. But it has broader implications because four other states – Alabama, Georgia, Kansas and Tennessee – have similar requirements, and 12 other states are contemplating similar legislation, officials say.
The Obama administration is supporting challengers to the law.
If Arizona can add citizenship requirements, then "each state could impose all manner of its own supplemental requirements beyond the federal form," Solicitor General Donald B. Verrilli Jr. said in court papers. "Those requirements could encompass voluminous documentary or informational demands, and could extend to any eligibility criteria beyond citizenship, such as age, residency, mental competence, or felony history."
A federal appeals court threw out the part of Arizona's Proposition 200 that added extra citizenship requirements for voter registration, but only after lower federal judges had approved it.
Arizona wants the justices to reinstate its requirement.
Kathy McKee, who led the push to get the proposition on the ballot, said voter fraud, including by illegal immigrants, continues to be a problem in Arizona. "For people to conclude there is no problem is just shallow logic," McKee said.
The Associated Press reported in September that officials in pivotal presidential election states had found only a fraction of the illegal voters they initially suspected had existed.
In Colorado, election officials found 141 noncitizens on the voter rolls, which was 0.004 percent of the state's nearly 3.5 million voters. Florida officials found 207, or 0.001 percent of the state's 11.4 million registered voters. In North Carolina, 79 people admitted to election officials that they weren't citizens and were removed from the rolls, along with 331 others who didn't respond to repeated inquires.
Opponents of Arizona's law see it as an attack on vulnerable voter groups such as minorities, immigrants and the elderly. They say Arizona's law makes registering more difficult, which is an opposite result from the intention of the 1993 National Voter Registration Act.
Proposition 200 "was never intended to combat voter fraud," said Democratic state Sen. Steve Gallardo of Phoenix. "It was intended to keep minorities from voting."
With the additional state documentation requirements, Arizona will cripple the effectiveness of neighborhood and community voter registration drives, advocates say. More than 28 million Americans used the federal "Motor Voter" form to register to vote in the 2008 presidential elections, according to the U.S. Election Assistance Commission.
An Arizona victory at the high court would lead to more state voting restrictions, said Elisabeth MacNamara, the national president of the League of Women Voters.
Opponents of the Arizona provision say they've counted more than 31,000 potentially legal voters in Arizona who easily could have registered before Proposition 200 but who were blocked initially by the law in the 20 months after it passed in 2004. They say about 20 percent of those thwarted were Latino.
Arizona officials say they should be able to pass laws to stop illegal immigrants and other noncitizens from getting on their voting rolls. The Arizona voting law was part of a package that also denied some government benefits to illegal immigrants and required Arizonans to show identification before voting.
The 9th U.S. Circuit Court of Appeals upheld the voter identification provision. The denial of benefits was not challenged.
Opponents "argue that Arizona should not be permitted to request evidence of citizenship when someone registers to vote, but should instead rely on the person's sworn statement that he or she is a citizen," Arizona Attorney General Thomas C. Horne said in court papers.
"The fallacy in that is that someone who is willing to vote illegally will be willing to sign a false statement. What (opponents) are urging is that there should be nothing more than an honor system to assure that registered voters are citizens. That was not acceptable to the people of Arizona."
The Arizona proposition was enacted into law with 55 percent of the vote.
This is the second voting issue the high court is tackling this session. Last month, several justices voiced deep skepticism about whether a section of the Voting Rights Act of 1965, a law that has helped millions of minorities exercise their right to vote, especially in areas of the Deep South, was still needed.
This case involves laws of more recent vintage.
The federal "Motor Voter" law, enacted in 1993 to expand voter registration, allows would-be voters to fill out a mail-in voter registration card and swear they are citizens under penalty of perjury, but it doesn't require them to show proof.
Under Proposition 200 approved in 2004, Arizona officials require an Arizona driver's license issued after 1996, a U.S. birth certificate, a passport or other similar document, or the state will reject the federal registration application form.
This requirement applies only to people who seek to register using the federal mail-in form. Arizona has its own form and an online system to register when renewing a driver's license. The court ruling did not affect proof of citizenship requirements using the state forms.
State officials say more than 90 percent of those Arizonans applying to vote using the federal form will be able to simply write down their driver's license number, and all naturalized citizens simply will be able to write down their naturalization number without needed additional documents.
Former Arizona Senate President Russell Pearce, a leading Republican proponent of Proposition 200, strongly disputed claims that Arizona doesn't have voter fraud problems. "They turn a blind eye," Pearce said of the state's election officials.
But Karen Osborne, elections director for Maricopa County, where nearly 60 percent of Arizona's voters live, said voter fraud is rare, and even rarer among illegal immigrants.
"That just does not seem to be an issue," Osborne said of the claim that illegal immigrants are voting. "They did not want to come out of the shadows. They don't want to be involved with the government."
The main legal question facing the justices is whether the federal law trumps Arizona's law. A 10-member panel of the 9th Circuit in San Francisco said it did.
The appeals court issued multiple rulings in this case, with a three-judge panel initially siding with Arizona. A second panel that included retired Supreme Court Justice Sandra Day O'Connor, who from time to time sits on appeals courts, reversed course and blocked the registration requirement. The full court then did the same, and that decision will be reviewed by the justices in Washington.
The case is 12-71, Arizona v. Inter Tribal Council of Arizona, Inc.
Billeaud reported from Phoenix.
Follow Jesse J. Holland on Twitter: http://www.twitter.com/jessejholland
Earlier on HuffPost:
You're an average voter in Pennsylvania. The night before Election Day, your wallet goes missing, leaving you without immediate access to any of the identification you'll need to vote at your local precinct the following morning. This would be a problem under <a href="http://www.ncsl.org/legislatures-elections/elections/voter-id.aspx#PA" target="_hplink">Pennsylvania's proposed photo ID law</a>, since <a href="http://www.huffingtonpost.com/2012/10/02/pennsylvania-voter-id-ruling_n_1919187.html" target="_hplink">blocked by a state judge</a>. While many people in this situation may have backup forms of identification, <a href="http://www.huffingtonpost.com/2012/07/05/pennsylvania-voter-id-law_n_1652469.html" target="_hplink">studies have shown</a> that a significant percentage of would-be voters don't. The state's safeguard against the immediate disenfranchisement of people in this situation would be a provisional ballot cast on the day of the election. But this doesn't mean your vote counts, yet. Anyone who casts a provisional ballot is required to "appear in person at the county board of elections" within six days of the vote to provide proof that their ballot was valid. If you're able to take time away from your job to do this, the process still requires a would-be voter to either show up with valid ID -- a replacement driver's license <a href="http://www.dmv.state.pa.us/fees/index.shtml" target="_hplink">would cost $36</a> and considerable time -- or to <a href="http://www.dmv.state.pa.us/pdotforms/voterid/VoterAffirmationNoProofofID.pdf" target="_hplink">sign an affirmation</a> that you are indigent and not able to afford the fees associated with acquiring a photo ID. Even if you make a rapid and somewhat expensive turnaround to get a replacement ID -- or alternatively swear under oath that you are too poor to pay for such a document -- there is no guarantee that your vote will end up counting. Many elections are largely decided before provisional voters have a chance to verify their validity, which could serve to discouraging them from following up with election officials or leave them effectively disenfranchised. In 2008, <a href="http://www.eac.gov/assets/1/Documents/2008 Election Administration and Voting Survey EAVS Report.pdf" target="_hplink">only 61.8 percent</a> of all provisional ballots cast were fully counted. If strict photo ID measures were implemented, however, the number of provisional ballots submitted would likely increase, as would the requirements for voters hoping to make them count. <em>(Photo: AP)</em>
Eleven percent of eligible voters say they lack current government-issued photo IDs, a <a href="http://www.brennancenter.org/page/-/d/download_file_39242.pdf" target="_hplink">survey</a> on the potential impact of voter ID laws found. You live in Georgia and you're one of them. Like 66,515 other Georgians, according to a <a href="http://brennan.3cdn.net/773c569439b50452e0_kzm6bo5l6.pdf" target="_hplink">recent study</a> from the Brennan Center for Justice, you also lack vehicle access and live more than 10 miles from an office that issues state ID. As a registered voter who's skipped the past few elections, you decide you'll vote this year. But you spend your life working multiple jobs to provide for your family, not tuned in to a news cycle that may have told you about a voter ID law that changed the requirements. If you were aware of the measure, you'd know that you have to get yourself to a state office during business hours to procure a photo ID in order to vote. According to the Brennan Center, these facilities are often only open part time, especially in areas with the highest concentration of people of color and in poverty. While the state does offer a free photo ID initiative, the Brennan Center points out that many of the offices provide confusing or inaccurate information about what Georgians need to do to get one. This may be a tough task as you juggle a strenuous work schedule with other commitments -- and that's assuming you're aware of the requirement. But you're not, so you head to your voting precinct on election day with no access to an acceptable form of identification and vote with a provisional ballot. To <a href="http://sos.georgia.gov/gaphotoid/3679BasicVotingInfo_printer final.pdf" target="_hplink">verify that ballot</a>, you'll have two days to present appropriate photo ID at your county registrar's office, which at this point wouldn't be doable. <em>(Photo: AP)</em>
As an elderly Tennessee resident, you've made a decades-long Election Day habit of traveling to your local polling place and exercising your franchise. It's an important day for you, and it gives you the rare opportunity to leave your house, where you live alone. For a number of years, you've had an identification card that allows you to vote. But thanks to the state's strict new voter ID law, that document will no longer be sufficient. Reports <a href="http://www.wbir.com/news/article/185824/2/Tennessee-voter-ID-law-awaits-effect-on-seniors" target="_hplink">found</a> that 230,000 Tennesseans older than 60 possess driver's licenses that don't have photos on them. Such ID will not be accepted at polling places in November. While the state has agreed to issue photo IDs free to anyone who asks, a <a href="http://www.huffingtonpost.com/2012/07/12/tennessee-voter-id-law-program_n_1669323.html" target="_hplink">recent study</a> found that only a tiny percentage of potential targets have applied. Perhaps that's because people like you weren't aware of exactly how the change was going to affect them. Maybe you weren't even aware of the change. Poll workers tell you that you can cast a provisional ballot on Election Day. You'll <a href="http://www.ncsl.org/legislatures-elections/elections/voter-id.aspx#tn" target="_hplink">have until</a> "the close of business on the second business day after the election" to find an applicable piece of identification -- which you don't have -- and present it to a designated elections official. Whether it's your lack of an acceptable form of identification, the difficulty in finding transportation back to the elections official, or the prospect of having to go through the drain of the entire process again, you're discouraged, and give up. <em>(Photo: AP)</em>
You're a resident of Kansas in your early 60s, fully expecting to vote in November. Your driver's license is your primary form of ID, but you rarely carry it anymore. You don't drive and you haven't traveled abroad in years, leaving your passport expired or lost. In the months before the election, you changed addresses, and for some reason never received a notification from the state reminding you that your license had expired. On the day of the election, you head to your polling place, unaware that you're about to be told your license is expired and therefore invalid according to the state's new voter ID law (Kansans over the age of 65 can use expired IDs, but you're not there yet). You're given a provisional ballot and informed that <a href="http://www.ncsl.org/legislatures-elections/elections/voter-id.aspx#Kansas" target="_hplink">you must</a> now "provide a valid form of identification to the county election officer in person or provide a copy by mail or electronic means before the meeting of the county board of canvassers." While Kansas says it has <a href="http://www.wycokck.org/Internet2010ElectionBanner.aspx?menu_id=1092&banner=27765&id=26946" target="_hplink">historically counted</a> around 70 percent of its provisional ballots, this year provides a different landscape. The next steps can be somewhat difficult, and with the enacting of the state's photo ID law, the use of such ballots will undoubtedly become more commonplace. Faced with disenfranchisement, you must now race against the clock to have your vote included. With no other acceptable forms of ID available, you go about the process of renewing your license. <a href="http://www.ksrevenue.org/renewingdl.html" target="_hplink">According to the state</a>, this requires you to make your way to a state office, where you'll have to provide a number of identifying documents and pay the fee. By the time you can find someone to chauffeur you through this process -- public transportation is complex and unreliable where you live, <a href="http://www.kansas.com/2012/07/24/2418365/voter-id-law-burdens-wichita.html" target="_hplink">even if you're in an urban center</a> -- most of the major election results have been announced on the news. You decide the undertaking isn't worth the time. <em>(Photo: AP)</em>
You're a first-time voter in Indiana who <a href="https://forms.in.gov/Download.aspx?id=9341" target="_hplink">registered to vote</a> at the Bureau of Motor Vehicles using your Social Security number, a process that also <a href="http://www.in.gov/bmv/2339.htm" target="_hplink">required you</a> to get a state identification card, which you placed in your wallet. As a recent high school graduate who commutes with other workers to your full time job on a farm, you rarely need to present identification, so you didn't even bother to get a new ID card when it went missing from your locker a few weeks before the election. You risk potential firing when you travel to your polling place with other members of your community on voting day, but you're intent on participating in your first election. Without valid photo ID, however, you don't get to pull the lever. Under Indiana's new photo ID law, you're instead required to fill out a provisional ballot. But you're told you'll still need to jump through additional hoops that could prove too demanding. Now tasked with making visits during business hours to both the Indiana BMV to <a href="http://www.dmv.com/in/indiana/drivers-license-replacement" target="_hplink">get a replacement ID</a>, and then to the <a href="http://www.ncsl.org/legislatures-elections/elections/voter-id.aspx#in" target="_hplink">county elections board</a> to verify your ballot, you decide keeping your job is more important than voting. <em>(Photo: AP)</em>
Pennsylvania, Part II
Viviette Applewhite was the lead plaintiff in a lawsuit challenging the constitutionality of Pennsylvania's new voter ID measure. She's a 93-year-old great-great grandmother who has voted regularly for decades. She claimed she didn't have access to any of the documents she'd need to vote. With no driver's license and no birth certificate, needed to get a photo ID, Applewhite said she'd be disenfranchised by the law. And she wasn't the only one. A <a href="http://www.aclupa.org/legal/legaldocket/applewhiteetalvcommonwealt/voteridclients.htm" target="_hplink">number of other plantiffs in the ACLU case</a> against Pennsylvania's photo ID law claimed they had been unsuccessful in attempts to get copies of their birth certificates and other papers due to complexities in the state's record-keeping. Most claimed the measure would take away their vote. The law has since been blocked for this election cycle.
Georgia, Part II
You're a longtime resident of Georgia, but you've just recently returned home from a six-month out-of-town assignment from your job. You get into town on the Monday before Election Day. Most of your possessions are still being shipped from halfway across the country. Old friends invite you to a bar to catch up, but in the process of removing your driver's license from your wallet to present to a bouncer, it cracks in half, leaving it officially invalidated. Without a valid license, you won't be able to cast a ballot the next day. You'd renew it and choke down the $20 or more fee <a href="http://www.dmv.org/ga-georgia/id-cards.php#Replacing-an-ID-Card-" target="_hplink">for the replacement</a>, but the documents you need to present are in the moving truck. An election official informs you that you can fill out a provision ballot on Election Day. To <a href="http://sos.georgia.gov/gaphotoid/3679BasicVotingInfo_printer final.pdf" target="_hplink">verify that ballot</a>, you'll have two days afterward to present appropriate photo ID at your county registrar's office. Either you're telling the moving company to drive twice the speed limit for the next 48 hours straight, or you're accepting your disenfranchisement. <em>(Photo: AP)</em>