Can States Go Beyond Federal Law On Voter Registration?

By Nina Totenberg

Published March 18, 2013 at 3:19 AM EDT

A voter fills out her ballot during early voting before the 2012 presidential election at the Gila County Recorder's Office in Globe, Ariz., on Oct. 26.

The U.S. Supreme Court hears arguments Monday in a case that could upend the federal effort to spur and streamline voter registration.

At issue is an Arizona law that requires prospective voters to provide proof of citizenship when they register to vote. A federal appeals court ruled last year that the state law must fall because it conflicts with federal law.

The 1993 National Voter Registration Act, known as the NVRA, allows voters to register by mail using a federal form on a postcard. The form asks, among other things: Are you a citizen of the United States? Prospective voters must check yes or no and sign the form under penalty of perjury. The federal law also requires state officials to "accept and use" the federal registration form for federal elections. The question in this case is whether the state of Arizona may place further conditions on registration, beyond what is required by federal law.

The case is not about laws that require photo ID when voters go to the polls; instead, it is about the threshold question of what requirements can be imposed on those seeking to register to vote in the first place. Arizona's law requires voters, at the time of registration, to provide proof of citizenship, whether it's a driver's license number, a naturalization number, a birth certificate or a variety of other documents.

The Case

The lead plaintiff in this case is Jesus Gonzalez, a Yuma, Ariz., school janitor who registered to vote, or tried to, on the day he became a U.S. citizen. His application was twice rejected by state officials. The first time was because, following instructions on the state form, he supplied his naturalization number, but as it turned out, there was no way for the state to verify that number with the Department of Homeland Security. On his second try, Gonzalez entered his driver's license number, but, as it turned out, because he had obtained his license when he was a legal resident but prior to becoming a citizen, unbeknownst to him, he was flagged in the state's files as a "foreigner."

Those challenging the Arizona law contend that these kinds of registration hoops are exactly what Congress sought to prevent when it enacted the 1993 law. They contend that Congress, after examining voter registration problems in the country, opted for uniformity and sought to eliminate barriers to registering for federal elections.

"Whether or not Arizona would strike that balance differently is not really relevant here, because Arizona doesn't get to make this call," says Nina Perales, lead counsel for Gonzalez. "Arizona law has to yield" because the law interferes with "federal regulation of federal elections."

Arizona counters that the federal system is simply not enough to prevent voter fraud because it relies on what state Attorney General Thomas Horne calls "an honor system. If you sign and say you're a citizen, we have to believe you."

Horne adds, "If you're willing to vote fraudulently, you're going to be willing to sign fraudulently, and therefore it's really no protection at all." In addition, he notes, there have been recorded incidents in Arizona of noncitizens registering to vote.

In response, Perales argues that the minute number of documented cases of noncitizen voter registrations involved people who mistakenly thought they could vote. And she adds that after a person is registered to vote in Arizona, there arefurther checks against other databases, such as "felony conviction records" or records where "people have said that they cannot serve on juries because they're noncitizens," to make sure the individual is in fact eligible to vote.

A Debate Over 'Accept And Use'

Perales' main point, though, is that the language of the federal law clearly requires the state to "accept and use" the mail registration form for federal elections.

Horne disagrees: "In everyday language, when we use the words 'accept and use,' we allow for the possibility of additional information." In a store, for example, "the clerk might accept and use a credit card but might also ask for a photo ID," he says.

"Registering to vote is nothing like using a credit card in a store," replies Perales. "When the NVRA requires states to accept and use the federal form, they don't mean take the form across the counter, see that it doesn't meet state requirements, and throw it in the trash. But that's pretty much what Arizona does," she adds.

The state doesn't literally throw the application in the trash. It stamps the form "rejected" and sends it back with the reason why, along with another blank form to fill out.

Perales contends that the Arizona add-ons to the federal registration requirements have seriously eroded voter registration among all groups. Of the 31,000 voter registrants who were rejected between 2005 and 2007, she notes, 80 percent were notLatino. Democrats and Republicans were rejected in equal numbers, almost half were younger than 30, and a majority of those who indicated race said they were white. Indeed, 90 percent were born in the U.S.

Equally important, says Perales, the Arizona provisions made registration drives extremely difficult. In Maricopa County, the state's largest county, for instance, registration from community-based drives plummeted 44 percent.

The law would make it very hard logistically to conduct voter-registration drives at churches and malls, Perales says. "You can see the scenario: ... 'Would you like to register to vote?' 'Why, surely I would.' 'Well, do you have a copy of your birth certificate on you, or may I photocopy your birth certificate?' "

Both sides in this case see a loss as having devastating effects. State officials see a loss as opening the door to voter fraud, while those challenging the law contend that a loss would gut the federal law, leading to dozens of copycat laws in other states. Florida, for instance, tried to add proof of mental capacity in 2005 as a condition on voter registration applications. And four other states have already passed laws like Arizona's.

Interestingly, the appeals court panel that struck down Arizona's law included retired Justice Sandra Day O'Connor, an Arizona native sitting by designation. The full appeals court sustained that judgment by a 9-2 vote. Now the U.S. Supreme Court will weigh in.