If you’re unhappy that federal courts just invalidated the Arizona’s law that required you to…well, essentially show your drivers’ license when you register to vote, your best chance to do something meaningful about it comes on Tuesday.

If you’re happy with the 9th Circuit Court of Appeals’ decision and its result, your best chance to help that result endure also comes on Tuesday.

In its decision, the 9th Circuit Court said that the National Voter Registration Act (NVRA) takes precedence over any attempts by states to define what documents you do (or don’t) need to register. The NVRA’s requirements for proof of citizenship aren’t as strict as those in the Arizona law, so the Arizona law had to go.

If you don’t like that, consider electing Congressmen/women who’ll overturn or modify the NVRA. If you do like that, consider electing someone who will keep the NVRA unchanged.

Here’s the link to the United States Election Assistance Commission’s website. If you click on the link for the National Voter Registration Act, you’ll find this form that you can use to register to vote in any state.

The EAC form, officially titled the “National Mail Voter Registration Form,” doesn’t require you to physically present ID when you register. It only requires you to present it the first time that you actually vote.

To be sure, the national form makes VERY clear that you have to be a US citizen to register to vote in Federal and state elections, and that it’s illegal to falsely claim US citizenship. Arizona has state-specific instructions on the form, which require registrants to provide the ID number of their drivers’ license or the last 4 of their SSN. So, there are safeguards against non-citizens registering.

If you don’t think those safeguards are enough, if you think Arizona’s requirement to show proof of citizenship at registration time is a smart thing to do…it won’t do to just rewrite the state law that got overturned. According to the 9th Circuit, when it comes to determining documentation requirements for voter registration, federal laws per se trump the states.

Here is a link to the 9th Circuit’s opinion. The majority opinion in this case relies on the Elections Clause found in Article I of the US Constitution. The court said:

The Elections Clause establishes a unique relationship between the state and federal governments. It provides:

The Times, Places, and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but Congress may at any time by Law make or alter such Regulations, except as to the Place of chusing Senators.

In a nutshell, the Elections Clause gives state governments initial responsibility to regulate the mechanics of national elections, “but only so far as Congress
declines to preempt state legislative choices.” Foster v. Love, 522 U.S. 67, 69 (1997).

In the 9th Circuit’s view, the fact that Congress passed a National Voter Registration Act showed that Congress WANTED to preempt state choices on voter registration requirements.

In sum, a state’s role in the creation and implementation of federal election procedures under the Elections Clause is to administer the elections through its own procedures until Congress deems otherwise; if and when Congress acts, the states are obligated to conform to and carry out whatever procedures Congress requires. See Foster, 522 U.S. at 69.

(Emphasis added).

By specifying voter registration requirements in the NVRA, to include the documentation a person needed to register, the 9th Circuit concluded that Congress had “deemed otherwise.”

Next, the opinion clearly states that the NVRA’s obvious goal was to get more people registered to vote in federal elections. One way to do that—make it easier to register.

The NVRA said that drivers’ license applications could also serve as voter registration applications. (This became known as the “Motor Voter” law). It also said that, in consideration for people who “will not come into contact with motor vehicle agencies,” states would be required to let people register to vote at offices that provided public assistance. Lastly, it required states to let people register for federal elections by mail, using a “Federal Form.” (I’m presuming the “Federal Form” is the one I linked above, from the EAC website).

The court compared Arizona’s Proposition 200 with the NVRA, and didn’t like what it saw. Bad news for Proposition 200.

we conclude that Proposition 200’s documentary proof of citizenship requirement conflicts with the NVRA’s text, structure, and purpose. First, the NVRA addresses precisely the same topic as Proposition 200 in greater specificity, namely, the information that will be required to ensure that an applicant is eligible to vote in federal elections. See Foster, 522 U.S. at 73. Section 7 of the NVRA, § 1973gg-7, both spells out the information that an applicant must provide in order to register to vote in a federal election and limits what the Federal Form can require.
…
Perhaps the instructions to the Federal Form put it best in stating: “you can use the application in this booklet to: Register to vote in your State.” Under the NVRA, prospective voters seeking to register in federal elections need only complete and submit the Federal Form. If this sounds simple, it is by design. Congress enacted the NVRA to increase federal registration by streamlining the registration process and eliminating complicated state-imposed hurdles to registration, which it determined were driving down voter turnout rates. Proposition 200 imposes such a hurdle.

By requiring prospective voters to show proof of citizenship when registering, the 9th Circuit deemed that Arizona was adding additional requirements to the registration process….something that Arizona—or any state, for that matter—did not have the authority to do.

Basically, Proposition 200 requires you to show a drivers’ license or non-operating identification card, both of which DMV provides. The 9th Circuit deemed that to be a “complicated” hurdle to voter registration.

Because the NVRA, which the opinion described as “comprehensive,” exists, the states are basically at the federal government’s mercy when it comes to determining requirements for voter registration documentation.

If you don’t like that, elect a Congress that will change the NVRA. If you do, don’t.

This entry was posted on Friday, October 29th, 2010 at 6:34 am and is filed under Uncategorized. You can follow any responses to this entry through the RSS 2.0 feed. Both comments and pings are currently closed.