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It’s September, Get Informed: Arizona’s Voter ID Law at the Court

Good morning, readers. What should I write about today? Oh, wait—it’s still September! And there is a veritable cornucopia of Supreme Court decisions from June 2013 with far-reaching ramifications, the effects of which the United States will be feeling for years to come. In case you’ve missed my articles thus far, the first two cases to be featured were Maryland v. King and Association for Molecular Pathology v. Myriad Genetics. Up next is Arizona v. The Inter Tribal Council of Arizona, Inc., a voting rights case decided on June 17.

Before scrutinizing the decision in Arizona v. The Inter Tribal Council of Arizona, Inc., it’s important that we take a moment to explore the facts surrounding the case. First: what, exactly, is the Inter Tribal Council of Arizona? Well, according to their website, the Inter Tribal Council of Arizona (or ITCA for short) is “a non-profit 501(c)(3) corporation that administers over twenty federal, state, and private grants and contracts in a variety of areas including health, research, and environmental quality.” This non-profit group has a membership comprised of “twenty of the federal recognized Tribes in Arizona” (member tribes include the Fort Mojave Tribe, the Hopi Tribe, and the San Carlos Apache Tribe) and it “coordinates meetings and conferences to facilitate participation of Tribal leaders and other Tribal staff in the formulation of public policy.” So, given these facts, we can understand already that Arizona v. ITCA was a case brought against the state of Arizona by a collective group of twenty of Arizona’s “federally recognized Indian Tribes.” Now, why did the ITCA bring a suit against the state of Arizona? To get to the bottom of this case, we need to go back in time…

More specifically, back to November 2, 2004, when Arizona passed its Proposition 200. This ballot initiative was a type of voter identification law that “required voters to provide proof of citizenship when registering to vote or casting a ballot,” according to Oyez. After Prop. 200 passed, a group of plaintiffs including the ITCA and the American Civil Liberties Union sued the state of Arizona, claiming that Prop. 200 “violated the Voting Rights Act of 1965, [was] unconstitutional under the Fourteenth and Twenty-Fourth amendments, and [was] inconsistent with the National Voter Registration Act of 1993” (from Oyez). Let’s break this claim down.

Under the Voting Rights Act of 1965 (which was recently gutted by the Supreme Court’s outrageous decision in Shelby County v. Holder, but at the time of Arizona v. ITCA was still valid in totality), states and local governments were prohibited from creating any type of “voting qualification or prerequisite to voting, or standard, practice, or procedure… to deny or abridge the right of any citizen of the United States to vote on account of race or color” (from the Act’s Section 2). It might seem that Prop. 200’s requirement that voters provide proof of citizenship was not a qualification or prerequisite created “on account of race or color,” but, according to the ACLU, “birth certificates were often not issued to U.S. citizens such as Native Americans born on reservations,” so the ITCA was justified in claiming Prop. 200 violated the Voting Rights Act.

Next, the Fourteenth Amendment is most known for its Equal Protection Clause, which states that “no state shall… deny to any person within its jurisdiction the equal protection of the laws.” The ITCA viewed Prop. 200 as a violation of this equal protection doctrine, again due to the fact that many Native Americans do not have birth certificates despite being United States citizens.  The Twenty-Fourth Amendment states that “The right of citizens of the United States to vote in any primary or other election for President or Vice President, for electors for President or Vice President, or for Senator or Representative in Congress, shall not be denied or abridged by the United States or any state by reason of failure to pay any poll tax or other tax.”  Though Prop. 200’s proof-of-citizenship requirement was not a direct poll tax, the ITCA saw similarities between this burdensome requirement—which many of their constituents could not meet—and the race-based poll taxes of the past.

Finally, there was the question of the National Voter Registration Act of 1993 (NVRA), which today is commonly known as the “motor voter” act. The NVRA was created to make it “easier for all Americans to register to vote and to maintain their registration” (from the Department of Justice), and requires that state governments allow their constituents who meet voting qualifications (i.e. above eighteen years of age and have United States citizenship) to register to vote when applying for or renewing a driver’s license. Qualified voters can also, under the act, register to vote while applying for social services such as food stamps or disability services. Because the NVRA provides uniform voter registration laws for the country, the ITCA saw Arizona’s Prop. 200 as deviating from the national standard set out by the NVRA and thus worthy of a legal challenge.

With all of these arguments in tow, the ITCA (and the ACLU, and several other groups) took Arizona to court. After a long and drawn out appeals cycle (which can be read at Oyez or the Legal Information Institute), the case finally reached the Supreme Court and was argued on March 18, 2013. Almost exactly three months later, the Court decided by a seven-to-two vote that Prop. 200’s proof-of-citizenship requirement is in fact preempted by a particular NVRA mandate which requires that all states “accept and use” a certain federal form. As the text of the Arizona v. ITCA decision explains, “That “Federal Form,” developed by the federal Election Assistance Commission (EAC), requires only that an applicant aver, under penalty of perjury, that he is a citizen.” Since the NVRA’s Federal Form already covers the question of citizenship, there is no need for Arizona’s proof-of-citizenship requirement under Prop. 200.

This decision is an important victory for opponents of voter identification laws. According to the Brennan Center for Justice, as recently as October 2012 “as many as 11 percent of eligible voters do not have government-issued photo ID,” and “that percentage is even higher for seniors, people of color, people with disabilities, low-income voters, and students.” The outcome of Arizona v. ITCA sets a strong precedent against state voter ID laws that, hopefully, will make it more difficult for other states to pass restrictive laws that attempt to limit a percentage of the population from registering to vote. What’s strange about this case, though, is the seven-Justice majority: the four liberal Justices Ginsburg, Breyer, Sotomayor, and Kagan were joined by the “moderate” Justice Kennedy and the conservative Chief Justice Roberts and Justice Scalia. With a topic such as the controversial voter identification laws, I expected that it would be a five-justice majority with Kennedy in his usual position as the swing vote.

Even stranger still is the fact that Justice Scalia wrote the majority opinion in Arizona v. ITCA, because Roberts, Scalia, and Kennedy joined Justices Thomas and Alito (who dissented in Arizona v. ITCA) to strike down the Voting Rights Act’s preclearance requirement nearly two weeks later. I’m pretty confused, and not just because I find myself once again backing the same position as Justice Scalia.  How could Scalia (and Roberts and Kennedy) fall on the side of nondiscriminatory voting laws in Arizona v. ITCA but destroy a major hallmark of equal voting rights in Shelby County v. Holder? Both cases were questions of voting rights and the role of the states in voting law, right? The Court continues to surprise and baffle me, and I’m sure that I’ll only be more puzzled next week when my September series of articles comes to a close and I review University of Texas Southwestern Medical Center v. Nassar and Vance v. Ball State University. Until then, enjoy the changing of the seasons, and be thankful for the National Voter Registration Act’s Federal Form.

About the Author

Lena Barsky hails from Arlington, VA and is a Classics concentrator who graduated in 2014. When not translating the works of Vergil and Ovid, she spends her time keeping tabs on all things judiciary. Her primary areas of interest are the Fourteenth Amendment, questions of federalism, immigration, and combating domestic violence and sexual assault. Ruth Bader Ginsburg is an idol of hers, and her favorite opinions to read are those written by Justice Robert Jackson. Her hobbies include performing in various ensembles on the clarinet, reading anything and everything she can get her hands on, swing dancing, and fighting for women’s rights.