Arizona can continue to demand proof of citizenship before registering voters, at least for the time being.
In a brief order Thursday, U.S. Supreme Court Justice Anthony Kennedy blocked a ruling against the state from taking effect as scheduled Friday. Instead, he directed those who successfully challenged the requirement to file legal papers by the end of the day Monday explaining why the April decision by the 9th Circuit Court of Appeals should be upheld.
It does not mean the high court intends to overturn the ruling — or even from preventing it from taking effect while the state seeks review. But it does mean that at least one justice thinks the issue is significant enough to require an immediate look by him and his colleagues.
If nothing else, the order is at least a temporary setback for efforts by the Mexican American Legal Defense and Educational Fund and the Inter-Tribal Council of Arizona to overrule a provision of a 2004 voter-approved initiative aimed at illegal immigrants.
Most of that measure dealt with things like proving legal presence to get certain public services. But the initiative also required proof of citizenship to register to vote and showing certain forms of identification before being able to cast a ballot.
In a split decision, the appellate court upheld the voter ID rules. But the judges said the state cannot strictly enforce the citizenship proof requirement to register.
Judge Sandra 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.
In a petition to the high court, state Solicitor General David Cole urged the justices to immediately intervene. He argued that the 9th Circuit ruling is flawed — and if it is allowed to take effect, it will make it difficult for Arizona and other states to ensure that only those who are eligible get to cast a vote.
At the heart of the fight is the National Voter Registration Act where Congress directed the Election Assistance Commission to create a standard federal voter registration form.
The commission, in designing that form, included a requirement to sign an avowal of citizenship and the warning of federal prosecution for lying. But the panel concluded that providing actual proof of citizenship was unnecessary.
More to the point, federal law requires Arizona — and all other states — to accept and use the federal form.
But the state, citing the 2004 ballot measure, is refusing to accept those forms without separate proof of citizenship.
Attorney General Tom Horne, who personally argued the case to the appellate court, told the judges Arizona was doing nothing wrong.
“There’s nothing in the statute that the states cannot do that,” Horne said. He argued that enforces the legitimate interest of states in preventing voter fraud, criticizing the federal form as a “so-called honor system where the only thing you do to check citizenship is to sign on a line.”
Cole, in his arguments to Kennedy, said intervention by the Supreme Court is necessary, saying allowing the ruling to stand “leads to absurd results.”
“The National Voter Registration Act by its terms is designed to enhance the integrity of elections,” he wrote, suggesting that allowing people to vote without first proving they are citizens works in the opposite direction. And Cole said a separate law — the Help America Vote Act — specifically allows states to establish procedures against voter fraud that are stricter than federal law.
Cole also said Arizona is entitled to immediate Supreme Court intervention because of the harms the state might face if it had to begin allowing people to register to vote without proof of citizenship.
He said that in 2005, the Maricopa County Recorder referred 159 incidents to the county attorney based on evidence demonstrating that people who were not U.S. citizens had registered to vote.
“Pima County has also referred to its county attorney several instances of non-citizens attempting to register to vote or cast votes in an election,” Cole wrote. In fact, he said, about 200 voter registrations in these two counties were cancelled when they swore that they were not citizens to avoid jury duty.
But Jon Greenbaum, representing the Inter-Tribal Council of Arizona, said federal law gives Congress broad authority when it comes to determining how elections can be run. He said any move by the Supreme Court to overturn the appellate decision would require a ruling “inconsistent” with those laws.