Several U.S. Supreme Court justices questioned whether states can demand proof of citizenship from people registering to vote, hearing arguments in a civil rights clash with political implications.
The hour-long session today in Washington suggested the justices will be divided in the case, which centers on an Arizona law invalidated by a federal appeals court. The lower court said states can’t impose registration requirements beyond those set by federal law.
Arizona is one of four states -- along with Alabama, Kansas and Georgia -- that require would-be voters to show evidence of citizenship. The Obama administration is joining minority-rights and voter-advocacy groups in arguing against the measures.
Justices Elena Kagan, Sonia Sotomayor and Ruth Bader Ginsburg voiced skepticism about the Arizona law, which Kagan said “essentially creates a new set of requirements.”
Justices Antonin Scalia, Anthony Kennedy and Stephen Breyer aimed questions at both sides in the case, leaving the outcome in doubt.
The case presents legal issues different from those in the voter-identification battles that garnered headlines in the months before last year’s election.
The high court case doesn’t directly involve allegations of racial or ethnic discrimination, though civil-rights groups pressed those contentions earlier in the litigation. The dispute now centers on the roles of the state and national governments in overseeing elections and on a 1993 federal law designed to increase voter registration.
The 1993 statute was informally known as the Motor Voter Law because of a provision that lets people register when applying for a driver’s license. The law also says states must “accept and use” a standard registration form developed at the federal level.
The San Francisco-based 9th U.S. Circuit Court of Appeals voted 9-2 to strike down the Arizona proof-of-citizenship requirement. It said the Constitution’s elections clause gives Congress the leading role to set the rules for federal voting.
Kennedy suggested the lower court was too quick to carve out such a limited role for the states.
“The state has a very strong and vital interest in the integrity of its elections, even when those, and perhaps especially when those, are elections of federal officials,” Kennedy said. “And it seems to me the 9th Circuit’s new test did not give sufficient weight to that interest.”
The 9th Circuit upheld other parts of the Arizona law, including its requirement that voters show identification at the polls.
Under Arizona’s law, those seeking to register can prove citizenship by presenting copies of a driver’s license or state- issued identification, so long as it was issued after October 1996. The state also accepts a birth certificate, a passport or naturalization papers. Arizona voters approved the measure in 2004.
Sotomayor told Arizona Attorney General Thomas Horne that “many people don’t have the documents that Arizona requires.”
Scalia questioned that assessment, saying that most citizens could meet the requirement by providing their driver’s license number.
The lawyer challenging the Arizona law, Patricia Millett, said that because the state doesn’t accept licenses issued before October 1996, “you have to be about 33 years of age” to use a driver’s license to prove citizenship.
“Anyone older than that, their driver’s license isn’t going to work,” she said.
Scalia said the number of people blocked from registering would still be “relatively few.”
Horne told the justices that the so-called federal form doesn’t do enough to keep non-citizens from voting. The federal form requires applicants to attest, under penalty of perjury, that they are citizens.
“It’s essentially an honor system,” Horne argued. “It does not do the job.”
Deputy U.S. Solicitor General Sri Srinavasan told the justices that the federal law was designed to “streamline the process of registering to vote.” If each state could impose its own additional requirements, “that would largely defeat the entire purpose of the federal form.”
The Arizona law is being challenged by groups including the Mexican American Legal Defense and Educational Fund, the League of Women Voters of Arizona and the Inter Tribal Council of Arizona.
The Supreme Court hasn’t considered an elections clause case since 1997, when it struck down Louisiana’s system of holding a nonpartisan congressional primary in October, followed by a runoff in November if no candidate received a majority.
The Supreme Court said that system violated the federal law that requires all congressional and presidential elections to be held on a single November day.
The case is Arizona v. Inter Tribal Council of Arizona, 12- 71.
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