Arizona has taken the U.S. Supreme Court’s advice to sidestep its ruling against the state, but there’s a catch.
In doing so, it would be appealing to an effectively non-existent federal commission.
U.S. Supreme Court Justice Antonin Scalia suggested in the June 17 ruling that Arizona could ask the Elections Assistance Commission to put the state’s requirement of proof-of-citizenship on federal voter registration forms, and sue if the commission says no.
Although Scalia, who wrote the opinion for the 7-2 court, provided the alternate route for Arizona to bypass the ruling, the commission has no sitting members. And its executive director and congressional Republicans are trying to eliminate it.
Secretary of State Ken Bennett made the request in a June 19 letter.
Arizona voters overwhelmingly passed Proposition 200 in 2004, requiring prospective voters to provide concrete proof of citizenship, even on federal registration forms, which only require an affirmation under penalty of perjury.
The U.S. Supreme Court held that Arizona cannot require the proof of citizenship for someone who submits the federal form, but the state can have the requirement on its own forms. States are required by federal election law to “accept and use” the federal forms.
Bennett’s request went to acting executive director Alice Miller, who routinely grants requests for requirements specific to each state’s election laws. Bryan Whitener, commission spokesman, said Miller can grant minor changes, but a quorum of the commission is required to make changes involving state policy.
Hans von Spakovsky, a former Department of Justice attorney with expertise on federal election laws, said Arizona is doing the right thing by petitioning the member-less commission.
“Arizona is actually in a better position today to go to court on this than they were in 2005,” said Spakovsky, who is now a legal fellow with the conservative Heritage Foundation.
The state first petitioned the commission in December 2005 and was rejected in March 2006 on the grounds that Arizona’s policy was effectively a refusal to accept and use the federal form.
Gov. Jan Brewer, who at the time was the secretary of state, again petitioned the commission in July 2006 after the state prevailed in U.S. District Court in the legal challenge the U.S. Supreme Court ultimately ruled on.
The four-member commission then put the request to a vote, which ended 2-2, with the two Republicans voting for the change and the Democrats against.
“If there were four commissioners on there right now, you’d get a split decision again,” Spakovsky said.
Spakovsky said the advantage now, as Scalia pointed out, is that Arizona will be able to challenge the decision in court and argue it was arbitrary because a few years ago the commission granted Louisiana’s request to require voters there to attach extra documents to the federal form.
Sen. Steve Gallardo, D-Phoenix, one of the plaintiffs in the Supreme Court case, said the state should drop the issue and concentrate on registering the thousands of people whose federal forms were rejected since the law took effect.
Attorney Daniel Ortega, who represented various plaintiffs in the case, told a gathering of the Hispanic and black leaders on June 18 to enjoy the Supreme Court ruling for now, but be prepared for more litigation as the state tries to get the proof-of-citizenship requirement through the back door.
“Unfortunately, the book has not been closed on this,” Ortega said.C