By Ken Blackwell
Friday, April 20, 2012
Note: This column was co-authored by Ken Klukowski, Legal
columnist at Breitbart.com.
Arizona might be going to the U.S. Supreme Court yet
again. A federal appeals court upheld part of the Grand Canyon State’s voter-ID
law, but struck down another part of Arizona’s law as inconsistent with a 1993
federal law. This might become the third citizen/voting Arizona law to go to
the Supreme Court in just three years.
Arizona allows for citizens to adopt ballot propositions
with the force of law, which trump state statutes but fall short of amending
the Arizona Constitution. Arizona’s voters adopted Proposition 200 in 2004. It
requires showing proof of citizenship when you register to vote, and then
showing government-issued photo-ID on Election Day when you cast your ballot.
Several individuals and groups sued, arguing that these
requirements violate two provisions of the U.S. Constitution and also the
National Voter Registration Act of 1993 (NVRA), which had been passed by a
Democrat-controlled Congress and signed by Bill Clinton. After years of
litigation, the case was decided by the U.S. Court of Appeals for the Ninth
Circuit.
Although federal appeals are heard by three-judge panels,
on rare occasions the full appeals court will reconsider a panel decision in
what is called an en banc rehearing. The Ninth Circuit is so large (almost
thirty active-service judges) that when it does an en banc rehearing the
court’s chief judge hears it, along with ten other judges chosen at random.
They took this unusual step in this case, Gonzalez v. Arizona.
Judge Sandra Ikuta—appointed by George W. Bush—wrote the
majority opinion. In 2008 the Supreme Court upheld Indiana’s voter-ID law in
Crawford v. Marion County Election Board in a 6-3 decision. Arizona’s law is
similar to Indiana’s, so the Court upheld it easily, holding that Arizona’s law
is consistent with the U.S. Constitution.
Not so the provision requiring people show proof of
citizenship when registering. The traditional way to register is by filling out
a state form at your county courthouse or county building. NVRA created two new
ways a person can register to vote in federal elections. One is by filling out
the state form at your local Department of Motor Vehicles office, and the third
is by filling out a federal form at home and submitting it by mail. The
plaintiffs in the Gonzalez case used the federal form—which makes you declare
that you are an American citizen but does not ask for proof—and says that
Arizona’s law violates NVRA.
The general rule is that when a federal and state laws
conflict, federal law wins. This almost always happens under the Supremacy
Clause of the Constitution. But election law issues arise under the Elections
Clause of the Constitution, which says that states have primary responsibility
for conducting elections but that “Congress may at any time by Law make or
alter such [state] Regulations.”
The Supreme Court has previously held that the Elections
Clause sets a higher bar for states than the Supremacy Clause. To respect state
sovereignty, courts presume a state law is not preempted by federal law under
the Supremacy Clause unless Congress makes explicitly clear that it wants to
trump the states. If that were the rule in Gonzalez, then Arizona’s law would
win on both issues in this case.
But the Supreme Court has not to date applied that same
rule to election laws. Instead, it has said that federal election law
automatically displaces state election laws. So even though there is a way to
make Arizona’s statute coexist alongside NVRA, the Ninth Circuit held that
Arizona’s citizenship-proof requirement must go.
Chief Judge Alex Kozinski joined the majority, but also
wrote a separate concurring opinion. In it Kozinksi observed that, “the Supreme
Court has never articulated any doctrine of giving deference to the states
under the Elections Clause… A case such as ours, where the statutory language
is unclear and the state has a compelling interest in avoiding fraudulent
voting by large numbers of unqualified electors, presents a far more suitable
case for decide whether we should defer to state interests. But only the Supreme
Court can adopt such a doctrine.”
So the messy split here, with some judges voting to
strike down one provision, others voting to uphold both, and others voting to
strike down both, might make this a tempting case for the Supreme Court to
take. The fact that Kozinski—a libertarian appointed by Ronald Reagan and one
of the most brilliant judges on the entire federal bench—wrote that only the
Supreme Court can reorient the Elections Clause, and that it should do so here,
increases the odds that the justices will take the case.
In the end, this was an important win for voter-ID laws.
And if the justices take this case it could become a broad-based win that would
strengthen state sovereignty and diminish centralized federal control of the
democratic process on Election Day. That would be a welcome development.
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