Within days of the U.S. Supreme Court hearing a challenge to an Arizona voting registration law that had been adopted as a “model” by the American Legislative Exchange Council (ALEC), two more states advanced bills that appear to track the ALEC/Arizona template.
On March 18, the Supreme Court heard oral arguments in Arizona v. Inter Tribal Council of Arizona (ITCA), which will decide whether Arizona’s refusal to register voters that do not provide proof of citizenship is in conflict with federal law.
As the Center for Media and Democracy reported, the 2004 Arizona law at issue in the case was subsequently adopted by ALEC lobbyists and legislators as a “model” for other states under the name the Taxpayer and Citizen Protection Act. The ALEC/Arizona law requires voters submit a copy of documents like passports or birth certificates to register, and is being challenged in the Supreme Court on grounds that it imposes additional restrictions beyond the National Voter Registration Act, which requires states to accept registrations submitted on a uniform federal mail application. Over 31,000 eligible Arizona voters have been rejected from the rolls because they did not have the additional documentation required under the state law.
The ALEC Taxpayer and Citizen Protection Act has since been introduced in multiple states, most recently in South Carolina and Nevada.
ALEC Bill Introduced in Nevada, South Carolina
In Nevada on March 18, the same day the Supreme Court heard the ITCA case, a version of the ALEC bill was introduced by Sen. Don Gustavson, a member of the ALEC Public Safety and Elections Task Force (which, before being disbanded last year, had adopted the Taxpayer and Citizen Protection Act as a “model”) and Sen. James Settelmeyer, a member of the ALEC Commerce, Insurance, and Economic Development Task Force. See the side-by-side here. The Nevada proposal additionally reflects provisions from the ALEC Taxpayer and Citizen Protection Act requiring proof of citizenship for public benefits (although the ITCA case only considers those provisions relating to voter registration).
In South Carolina, a bill that closely tracks the ALEC Taxpayer and Citizen Protection Act was introduced by Sen. Chip Campsen, an ALEC member who is part of the Tax and Fiscal Policy Task Force and who has received corporate-funded “scholarships” to attend ALEC meetings. See the side-by-side here. Campsen introduced the bill in January, and on March 15, it was referred to a Judiciary Subcommittee chaired by Campsen himself. Campsen had previously introduced the same bill in early 2012, after the Department of Justice blocked the state’s ALEC-inspired voter ID bill under Section 5 of the Voting Rights Act.
Though ALEC has since posted some bills on its website and has claimed to disavow models like the Taxpayer and Citizen Protection Act, (with its spokesperson alleging “if it is not on our website, it is not our policy”), ALEC member legislators continue to introduce the organization’s “model” legislation, without regard for whether ALEC has decided to make the bills public.
Hearing Shows Divided Court
The fate of those ALEC-inspired proposals may depend on the outcome of the Arizona v. ITCA case. The justices in oral argument appeared divided along familiar ideological lines.
Justices Sonia Sotomayor, Ruth Bader Ginsburg, and Elena Kagan all noted that federal law tells states they must accept the federal registration form, and that states cannot create their own reasons for rejecting some applications. In response to Arizona Attorney General Thomas Horne calling the proof of citizenship requirement a “minimal burden,” Justice Sotomayor replied that “many people don’t have the documents that Arizona requires,” and that over 31,000 Arizona voters were rejected from the rolls.
Chief Justice John Roberts and Justices Antonin Scalia and Samuel Alito appeared to side with Arizona. Scalia mocked the notion that any weight should be given to the federal form’s requirement that voters swear, under oath and threat of perjury, that they are U.S. citizens. “So it’s under oath,” Scalia said. “Big deal. If you’re willing to violate the voting laws, I suppose you’re willing to violate the perjury laws.” (Sworn statements under oath are considered proof beyond reasonable doubt in a criminal trial, replied Patricia Millett, attorney for several of the groups challenging the law.)
Justice Kennedy, who may cast the deciding swing vote, said that if states can ask for additional documentation beyond the NVRA, the “federal form is not worth very much.” But he also expressed sympathy for Arizona’s position, noting “the state has a very strong and vital interest in the integrity of its elections” that the Ninth Circuit had not adequately taken into account.
The case might have had broader implications for voting rights beyond just Arizona’s statute. When the Ninth Circuit struck down Arizona’s law, it issued its ruling under the Constitution’s Election Clause, which allows states to decide “the time, place and manner” of holding federal elections, but authorizes Congress to “make or alter such regulations.” In its appeal to the Supreme Court, Arizona argued for a narrow scope of federal power under the Election Clause, claiming it affords states the exclusive power to determine voter qualifications.
Some feared that the Supreme Court might side with Arizona and issue a decision that shifted the power between the states and federal government for regulating elections. But during oral argument the justices showed little interest in the broader constitutional questions, focusing more specifically on the NVRA’s statutory language.