The question of who is entitled to vote--and what evidence a voter needs to produce to demonstrate that entitlement--has become an important issue in states across the nation. (1) This increased focus on voter identification and registration requirements has renewed debates concerning the balance of power between states and the federal government in the administration of federal elections. (2) One of the key grants of power to Congress in the conduct of federal elections is the Elections Clause of the Constitution, which gives states the authority to regulate the "Times, Places and Manner" of federal elections, but notes that Congress "may at any time by Law make or alter such Regulations." (3) Last Term, in Arizona v. Inter Tribal Council of Arizona, Inc., (4) the Supreme Court held that the federal National Voter Registration Act of 1993 (5) (NVRA) preempts Arizona's requirement that voters produce evidence of citizenship in order to register to vote. While ostensibly an affirmation of expansive congressional power to supersede state law and regulate elections under the Elections Clause, Inter Tribal Council's unclear analysis of the distinction between congressional authority to mandate the "Times, Places and Manner" of federal elections and the states' authority to prescribe individual voter qualifications actually leaves the reach of congressional power under the Elections Clause ambiguous.
The NVRA requires that all states "accept and use" a uniform federal form (the "Federal Form") when registering voters for federal elections. (6) The content of this form is prescribed by the Election Assistance Commission (EAC) and, rather than requiring documentary evidence of citizenship, stipulates that an applicant swear, under penalty of perjury, that she is a United States citizen. (7) In November 2004, Arizona voters passed Proposition 200, an initiative that enacted various revisions to the state's election law. (8) One modification required that a county recorder "reject any application for [voter] registration that [wa]s not accompanied by satisfactory evidence of United States citizenship." (9) This proof-of-citizenship requirement could be satisfied by: "(1) a photocopy of the applicant's passport or birth certificate, (2) a driver's license number, if the license states that the issuing authority verified the holder's U.S. citizenship, (3) evidence of naturalization, (4) tribal identification, or (5) '[o]ther documents or methods of proof'" as established elsewhere in federal immigration law. (10) Hence, Arizona's law would have required a county recorder to reject a properly completed Federal Form absent one of these types of evidence.
Following the passage of Proposition 200, many plaintiffs filed lawsuits to enjoin these changes. The United States District Court for the District of Arizona consolidated the various complaints and ultimately held that Proposition 200's registration provision did not conflict with the NVRA. (11) The plaintiffs appealed this decision. (12)
A panel of the Ninth Circuit affirmed in part and reversed in part. (13) Writing for the court, Judge Ikuta (14) found that Proposition 200's proof-of-citizenship requirement conflicted with the NVRA and was preempted. (15) Following Judge Ikuta's ruling, a majority of the active judges of the Ninth Circuit voted to rehear the case en banc. (16)
The Ninth Circuit, sitting en banc, also affirmed in part and reversed in part. (17) Judge Ikuta, (18) writing again for the en banc court, distinguished the considerations related to Elections Clause preemption from those concerning Supremacy Clause preemption, because--unlike the Supremacy Clause--the Elections Clause "affects only an area in which the states have no inherent or reserved power: the regulation of federal elections." (19) Comparing Proposition 200 and the NVRA, the court found that Proposition 200's proof-of-citizenship requirement would require a county recorder to reject any voter registration--including a Federal Form--unaccompanied by adequate proof of citizenship, and that this provision could not be reconciled with the NVRA's mandate that states "accept and use" the Federal Form. …