FINAL UPDATE Thursday 2:20 p.m. Justice Kennedy has issued a temporary order delaying the Ninth Circuit Court’s ruling, at least until further briefs are filed in the case. The Circuit Court mandate was due to be issued tomorrow, but now will be delayed until at least next Wednesday afternoon. The challengers to the Arizona citizenship proof requirement are to file a brief by Monday afternoon, with a state reply due by noon Wednesday. Earlier today, this post was updated to provide a link to the application, here.
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Arizona state officials asked the Supreme Court on Wednesday to allow election officials there to demand that all voters show proof of citizenship before they may register to vote The divided en banc Ninth Circuit Court ruled in April that the citizenship proof requirement conflicts with a 1993 federal law passed to make it easier for individuals to sign up to vote. The state took its plea for a delay of that ruling, for the duration of this year’s election season, to Justice Anthony M. Kennedy, who has the option of acting alone or referring the issue to his eight colleagues. The application (11A1189) was filed in Arizona v. Gonzalez, et al. The en banc Ninth Circuit, over three judges’ dissents, had denied a stay last week.
The dispute over the citizenship requirement in Arizona has strung out in the federal courts for nearly eight years, after it was imposed by Arizona voters in “Proposition 200” in 2004. The controversy has been to the Supreme Court once before, in 2006, when the Justices in a unanimous, summary ruling overturned a prior Ninth Circuit order against enforcement of that provision during the 2006 elections (Purcell v. Gonzalez, et al.). That decision, though, voiced no opinion on the validity of the citizenship mandate. It has now been reviewed twice by Ninth Circuit panels (one including retired Justice Sandra Day O’Connor, sitting as a Circuit judge), and by the en banc Circuit Court.
As the new Arizona filing reached the Court, the case involves a fundamental constitutional dispute over the twin roles of Congress and the state legislatures in setting up the methods for conducting elections for federal offices. The Constitution gives the first option to write election laws to the states, but gives Congress the authority to override state provisions. That is what the en banc Ninth Circuit concluded that Congress had done, toward the citizenship proof requirement, when the national lawmakers passed the National Voter Registration Act of 1993. That Act specifies that a special “federal form” is generally to be used to facilitate registration.
The Ninth Circuit majority concluded that, when the federal law and the state citizenship requirement were placed side by side, they did not work together “harmoniously,” so the state requirement had to yield.
In asking Justice Kennedy and the Court to put that ruling on hold, while the state pursues an appeal to the Justices, the Arizona application argued that the appeals court has misinterpreted the Constitution’s Elections Clause in a way that fails to show proper deference to the states’ role in managing elections under that Clause. The Circuit Court majority, the state contended, failed to “recognize that the Elections Clause grants states the authority to enact legislation consistent with federal law,” and applied a theory of its own to find that the Arizona provision could not stand alongside the federal registration law. This is an issue, the application contended, that goes well beyond Arizona, the citizenship requirement, and this year’s election cycle.
There is actually no conflict at all between the two provisions, the state contended. The federal registration form asks voters to note whether they are U.S. citizens, and the state provision only adds a requirement that voters offer some proof of that at the time they register. The two definitely can coexist, the state contended.
Justice Kennedy is likely to call for a response from the challengers to Proposition 200 before acting on the application, or sharing it with the other Justices.
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