Arizona Proof of Citizenship Rule Struck Down

The 9th Circuit has struck down an Arizona law requiring people to show proof of citizenship to vote. No, this doesn't open the floodgates to illegal alien voting.

The 9th Circuit has struck down an Arizona law requiring people to show proof of citizenship to vote.

Arizona’s election law requiring residents to show proof of citizenship conflicts with the National Voter Registration Act, a federal appeals court ruled in overturning portions of the measure.

The U.S. Court of Appeals in San Francisco yesterday invalidated parts of Arizona’s Proposition 200, a 2004 voter- approved initiative on registration for state and federal elections. The court didn’t disturb a requirement that voters show identification at the polls.  A three-judge panel of the court, in a 2-1 decision, said the proof-of-citizenship requirement conflicted with the intent of the federal law aiming to increase voter registration by streamlining the process with a single form and removing state- imposed obstacles to registration.

The federal law requires applicants to “attest to their citizenship under penalty of perjury” without requiring documentary proof, the panel said.  “Proposition 200 creates an additional state hurdle to registration,” the judges said.

Michelle Malkin notes that retired Supreme Court Justice Sandra Day O’Connor sat in on the case and joined in the majority and sees this part of a larger “No illegal alien left behind” effort in which “the Obama Department of Social Justice has also been actively sabotaging state efforts to ensure that only U.S. citizens vote in U.S. elections.”

But, while I’m sure the administration is happy to have as many Hispanics — who tend to vote Democrat — eligible to vote as possible, they’re enforcing black letter law.  I haven’t read Chief Judge Alex Kozinski’s dissenting opinion, if one exists, but this one seems like a no-brainer.  If Federal law says that declaration of citizenship is sufficient, it’s rather obvious that states can’t countermand that with a requirement to show paperwork.

Further, while I believe claims of widespread fraud in which illegal aliens, felons, and others not eligible to vote do so is wildly overstated, reasonable measures to prevent such fraud have withstood judicial challenge.  Indeed, as Malkin and the Bloomberg report excerpted above note, this decision lets stand Arizona’s photo ID requirement.    While not foolproof — but, then, what is? — this requirement should make it difficult for non-citizens to vote.   The RealID law makes new drivers licenses much more onerous to obtain and, certainly, US Passports require a birth certificate.

FILED UNDER: Borders and Immigration, Law and the Courts, US Politics
James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Comments

  1. Billy says:

    “If Federal law says that declaration of citizenship is sufficient, it’s rather obvious that states can’t countermand that with a requirement to show paperwork.”

    Absolutely correct. It’s called Federal Preemption, and it’s not discretionary on the part of the courts.

  2. PD Shaw says:

    I assume the ruling would be different in states not complying with Real I.D.

  3. PD Shaw says:

    Arkansas, Colorado, Georgia, Hawaii, Idaho, Illinois, Louisiana, Michigan, Minnesota, Missouri, Montana, Nebraska, Nevada, New Hampshire, North Dakota, Oklahoma, South Carolina, Tennessee, Virginia, and Washington have joined Maine and Utah in passing legislation opposing Real ID

    Supremacy clause for me, but not for you?

  4. steve says:

    There remains almost no proven voter fraud, just voter registration, which is a different issue. Not sure why we keep spending so much time and money on this. Either there isnt enough fraud to matter, or those illegals are too smart for us.

    Steve

  5. JKB says:

    Arizona is between a rock and a hard place on this. If the AZ drivers license is good enough for presumption of lawful presence then it can easily flag non-citizens in a check when voters register. So extra proof is hard to justify for voter registration. That along with making it common knowledge that registrants are checked against alien and felon databases should prevent all but the most aggressive non-citizen attempts to vote. Throw in a few very public prosecutions for perjury on the registration as well.

  6. PD Shaw says:

    steve, samples of the Florida voting rolls have shown 3% of voters are illegal aliens. (I wonder if they tend to be Republican though?) As long as a state takes all the time, effort and money to determine what are essentially ties, I don’t see why states with larger illegal immigration populations would check this as well.

  7. mantis says:

    samples of the Florida voting rolls have shown 3% of voters are illegal aliens.

    Got a link to something supporting that claim? Keep in mind that Florida has a history of preventing legitimate voters from voting because their names are the same or similar to convicts.

  8. Davebo says:

    “steve, samples of the Florida voting rolls have shown 3% of voters are illegal aliens.”

    Do you have a reference to this study PD?

  9. PD Shaw says:

    The dissenting opinion argues that the majority’s decision violates the Ninth Circuit’s previous holding:

    “A prior panel has already held in a published opinion that Proposition 200 isn’t preempted because the National Voter Registration Act (“NVRA”) “plainly allow[s] states, at least to some
    extent, to require their citizens to present evidence of citizenship when registering to vote.” Gonzalez v. Arizona, 485 F.3d 1041, 1050-51 (9th Cir. 2007) (“Gonzalez I”).”

    http://www.ca9.uscourts.gov/datastore/opinions/2010/10/26/08-17094.pdf

    I wonder if it was easier for Justice O’Connor to ignore a Court of Appeals decision she disagreed with?

  10. PD Shaw says:

    From the Heritage Foundation:

    “In 2005, the U.S. Government Accountability Office found that up to 3 percent of the 30,000 individuals called for jury duty from voter registration rolls over a two-year period in just one U.S. district court were not U.S. citizens.[1] While that may not seem like many, just 3 percent of registered voters would have been more than enough to provide the winning presidential vote margin in Florida in 2000. Indeed, the Census Bureau estimates that there are over a million illegal aliens in Florida,[2] and the U.S. Department of Justice (DOJ) has prosecuted more non-citizen voting cases in Florida than in any other state.[3] ”

    http://www.heritage.org/research/reports/2008/07/the-threat-of-non-citizen-voting#_ftnref4

  11. mantis says:

    PD,

    First of all, that was not an analysis of the Florida voter rolls, as you claim. Seven states were looked at, none of them Florida. Heritage added the info about the 2000 Florida vote, but it has nothing to do with the study itself.

    Anyway, I like to go to the source, so I looked at that report, which I believe I looked at a few years ago. Here’s the part that Heritage uses:

    AOUSC officials and federal jury administrators we spoke with generally did not have exact data on the number of people called for jury service that responded that they were non-citizens. Consequently, no information was available from federal jury administrators in six U.S. district courts, but federal jury administrators in eight U.S. district courts provided either exact numbers or estimates. Of the eight district courts, four federal jury administrators said no one had been disqualified from jury service because they were not U.S. citizens. In the other four district courts:

    a federal jury administrator in one U.S. district court estimated that 1 to 3 percent of the people out of a jury pool of 30,000 over 2 years (about 300 to 900 people) said they were not U.S. citizens;

    • a federal jury administrator in a second U.S. district court estimated that less than 1 percent of the people out of a jury pool of 35,000 names each month (less than 350 people) said they were not U.S. citizens;

    • a federal jury administrator in a third U.S. district court estimated that about 150 people out of a jury pool of 95,000 names over 2 years said they were not U.S. citizens; and

    • a federal jury administrator in a fourth U.S. district court estimated that annually about 5 people typically claimed non-citizenship in a jury pool of about 50,000 individuals.

    One jury administrator in one district gave an estimate that was dramatically higher than that in the other reporting districts. That administrator’s estimate was also very vague, at “1 to 3 percent.” Of course Heritage ignores all other reports and just puts for the claim that “up to 3 percent” “in just one district” were not U.S. citizens, as if that number were reliable and that district typical. Neither are true. It’s the vaguest estimate the GAO was given, and it’s out of line with the other districts estimates or exact numbers given.

    Now, if you want some numbers that aren’t so shaky, I recommend this 2005 report from the Department of Justice detailing the prosecutions of voter fraud from 2002 – 2005. In it you’ll find that in that time, the DOJ convicted just 17 people for casting fraudulent ballots (with three more pending at the time of the report). This is the Bush DOJ, which we now know was very focused on voter fraud efforts. 17 votes, nationwide, over three years, including both a presidential election in which more people voted than ever before, and a midterm election. 17 votes. I’m not against instituting better efforts to prevent fraud, but is this really threatening our democracy? It is not.

  12. DMan says:

    Mantis,

    That was probably one of the best responses to a comment I’ve read in a long time. I wish others would take notice of how you cited facts and went to the primary source for the information rather than spouting BS and copying someone else’s opinions. Great work!

  13. Franklin says:

    Not only that, it was apparently based on people who “said they were not U.S. citizens.” Maybe they were just trying to get out of jury duty! Without more info about what exactly that one administrator was basing his estimate on, it seems pretty shaky.

  14. PD Shaw says:

    mantis, I wrote samples of the Florida voting rolls; I think you took it to mean something more comprehensive than I intended.

    However, I shouldn’t have written “illegal alien” since the voters could be in the country legally.

    But what you’ve written doesn’t change the fact that in some areas of the country, the number of non-citizens voting is going to be enough to determine the outcome. I don’t think it’s unreasonable for states to spend time and money on it, particularly given how much time and money is spent anyway trying to figure out which box the voter intended to check.

  15. PD Shaw says:

    Franklin, they appear to be admitting to a crime either if they are voting and are not eligible or if they are making false statements with the hope of getting out of jury duty.

  16. mantis says:

    I wrote samples of the Florida voting rolls;

    I know. The study didn’t sample Florida voting rolls.

    But what you’ve written doesn’t change the fact that in some areas of the country, the number of non-citizens voting is going to be enough to determine the outcome.

    That’s hardly a fact. As I pointed out to you, there’s a big difference between being registered to vote and voting.

    I don’t think it’s unreasonable for states to spend time and money on it, particularly given how much time and money is spent anyway trying to figure out which box the voter intended to check.

    I don’t think it’s unreasonable either, I just think the fears of voter fraud are quite overblown, not supported by the facts.

  17. Rick Almeida says:

    “But what you’ve written doesn’t change the fact that in some areas of the country, the number of non-citizens voting is going to be enough to determine the outcome.”

    Yes, it does, because the study you cite doesn’t say one single thing about non-citizens voting.

  18. steve says:

    PD-Where is the evidence that they actually vote? 3% ends up with a lot of fraud. Surely some of them have been caught. Seems like it would take a whole bunch of people working together to hide it and keep quiet about it. A conspiracy with over 30,000 people doesnt seem likely to hold together well.

    Steve

  19. Herb says:

    “But what you’ve written doesn’t change the fact that in some areas of the country, the number of non-citizens voting is going to be enough to determine the outcome.”

    No doubt you believe that, but I’d be interested to see if you could back it up with facts. Let’s start with the areas of the country where the non-citizen vote will affect the outcome. Where are they?

  20. PD Shaw says:

    So, let me get this straight. A number of you believe that the non-citizens registering to vote are not voting? I think Occam’s razor would suggest that people registering to vote, intend to vote. I think this is particularly true given that registering to vote when one isn’t eligible can be prosecuted criminally or prevent one from becoming a citizen.

    From the Heritage Foundation article:

    “The county recorder in Maricopa County had also received inquiries from aliens seeking verification, for their citizenship applications, that they had not registered or voted. Thirty-seven of those aliens had registered to vote, and 15 of them had actually voted. As the county’s district attorney explained, these numbers come “from a relatively small universe of individuals-legal immigrants who seek to become citizens…. These numbers do not tell us how many illegal immigrants have registered and voted.”[47] Even these small numbers, though, could have been enough to sway an election. A 2004 Arizona primary election, explained the district attorney, was determined by just 13 votes.”

    My rough math indicates that taking all of the reporting Florida district courts, over 0.5% of those on the voter rolls are not citizens. In many states, like Minnesota, an election decided by less than 0.5% of the vote requires a mandatory recount. So we are talking about material numbers in some parts of the country.

  21. Rick Almeida says:

    “My rough math indicates that taking all of the reporting Florida district courts, over 0.5% of those on the voter rolls are not citizens. In many states, like Minnesota, an election decided by less than 0.5% of the vote requires a mandatory recount. So we are talking about material numbers in some parts of the country.”

    No, we are not. We are talking about extrapolations from hypotheticals relying on a supposition from one isolated source to make generalizations about an entirely different phenomenon.

  22. sam says:

    All this aside, PD, are you arguing that noncitizens can never vote in American elections?

  23. anjin-san says:

    > I just think the fears of voter fraud are quite overblown, not supported by the facts.

    Who needs facts when we have so many stories on Fox about voter fraud? Cut to video of a polling place full of folks who are not white…

  24. Franklin says:

    Franklin, they appear to be admitting to a crime either if they are voting and are not eligible or if they are making false statements with the hope of getting out of jury duty.

    Agreed. I’m just saying that one guy’s estimate isn’t even necessarily an estimate of the number of non-citizens. It could, as you say, include people making false statements (which, in my understanding, has been known to happen).

    Coincidentally, I have jury duty this coming Monday. Sort of a bad time at work, but I wouldn’t miss this experience. I just hope I don’t get dismissed by some lawyer for no good reason.

  25. PD Shaw says:

    “All this aside, PD, are you arguing that noncitizens can never vote in American elections?”

    The last I read, noncitizens are not qualified to vote in any of the states and it is a crime to knowingly register and/or vote when one is not eligible. But I would take that to mean that if a state made it legal for a noncitizen to vote, then it would not be a crime. Do you know differently?

  26. sam says:

    SCOTUS has never ruled on the question, so, who knows? And several cities, Portland, Maine and San Francisco are contemplating allowing noncitiizens to vote in municipal elections. Here’s Eugene Volokh on the question and some interesting US history:

    A comment on the census / illegal aliens thread asked whether any states allow noncitizens to vote. I don’t think they generally do that now, though some municipalities might. But apparently they used to do it in the past. Here’s what I blogged on the subject seven years ago:

    1. I generally oppose noncitizens’ voting at the state and federal level, and where taxes or criminal laws are concerned, but in some contexts — for instance, the internal governance of a government body, such as a law school — belonging to the specific community (e.g., being a law professor) might be more important than belonging to the national community. More broadly, the idea of noncitizens voting wasn’t as outrageous as some suggested. (Some have even argued that noncitizen voting is actually prohibited by the constitution; I think that’s not so.)

    2. A friend of mine — a leading election law expert, who I’d say is considerably more on the Right than on the Left — wrote something on an academic discussion list about the history of noncitizen voting, and I got his permission to pass it along:

    As a historical matter, non-citizens were routinely allowed to vote in state and local elections at the close of the 18th century (provided they met the other significant restrictions of the time, i.e. male, property ownership, etc.). Indeed, states often offered this benefit as a way to help attract immigrants, who were seen as economically beneficial.

    In the early 19th century, even as the franchise was rapidly expanded for citizens, there was a trend to limit immigrant voting. However, this trend reversed again after the Civil War, in part due to the service of immigrants in both Northern and Southern armies during the war, and by the 1890s about half the states allowed non-citizens to vote.

    The racist and nativist philosophy of the progressive movement fed hostility to non-citizen voting, and was augmented by the assassination of President McKinley by an immigrant, and finally the “Red Scare” of Woodrow Wilson and Mitchell Palmer after WWI. The last state to abolish immigrant voting was Arkansas, in 1926.

    As a constitutional matter, in Skafte v. Rorex, 553 P.2d 830 (1976), the Colorado Supreme Court found no constitutional right for permanent resident aliens to vote. The U.S. Supreme Court has not specifically ruled on it, but has suggested that citizenship with respect to voting is not a suspect class subject to strict scrutiny. Hill v. Stone, 421 U.S. 289 (1975); Sugarman v. Dougall, 413 U.S. 634 (1973).

    The justification, of course, is that because non-citizens have not chosen to join the body politic (especially given that in the U.S., it is pretty easy to do so), they therefore have not shown an interest in the long term welfare of that polis, and so should not vote. The flip side is that they are subject to the draft, pay taxes, etc., like the rest of us.

  27. PD Shaw says:

    I don’t have a problem with legal aliens voting. I primarily would want the rules to be uniform within the jurisdiction. So, if San Francisco authorizes aliens to vote, that would only be effective for San Francisco offices, not statewide.

  28. sam says:

    That’s the program as I understand it.