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US Supreme Court Considers ALEC Voting Bill
(Photo: Mark Fischer / Flickr)

US Supreme Court Considers ALEC Voting Bill

(Photo: Mark Fischer / Flickr)

The U.S. Supreme Court is hearing oral arguments on March 18 to decide whether an Arizona statute that imposes restrictions on voter registration conflicts with federal law. The case could potentially decide the balance between the state and federal governments when it comes to elections and voting rights. After becoming law in Arizona, the bill at issue was adopted as a “model” by the American Legislative Exchange Council (ALEC).

The case, Arizona v. Inter Tribal Council of Arizona, arises in the wake of the state’s efforts to narrow access to the ballot box through limits like restrictive voter ID requirements, and could have wider implications for the degree of latitude states have to regulate voting.

In 2004, Arizona voters approved a law requiring election officials to reject voter registration forms that did not include certain forms of documentation proving citizenship. Like many GOP-led efforts that make it harder for Americans to vote, the bill was pushed through the spectre of voter fraud.

There was little evidence of any widespread practice of undocumented workers voting in state or federal elections, and critics said the real intent of the law was to shut down successful community voter registration drives. The law also imposes additional burdens on naturalized citizens by, for example, requiring they bring their naturalization papers to the voter registrar, while native-born citizens use regular mail. Arizona rejected more than 30,000 registration applications, and the law was challenged by a variety of Native American, Latino, and Asian groups, as well as voting rights advocates.

In April 2012, the U.S. Court of Appeals for the Ninth Circuit ruled that the Arizona law is preempted by the National Voter Registration Act of 1993 (NVRA). That decision has been appealed to the U.S. Supreme Court.

Appeals Court Finds AZ Conflicts with Clinton’s Motor Voter Act

The NVRA, also known as the “Motor Voter Act,” is a federal law designed to make voter registration simpler and more uniform, perhaps most notably by requiring states to accept registration using a uniform federal mail application (sent on a postcard). Arizona’s refusal to accept federal voter registration forms without proof of citizenship, the Ninth Circuit held in April 2012, imposed additional restrictions beyond what was called for under the federal law.

The Ninth Circuit ruled that the requirements under the NVRA and Arizona’s law “do not operate harmoniously” and “are seriously out of tune with each other in several ways.” The federal law requires states to “accept and use” the federal form which, the court found, is thwarted by Arizona rejecting forms that do not include the additional restrictions on proving citizenship that are imposed under the state law.

The federal court also spelled out a formula for judging when state election laws are preempted by federal law. The Ninth Circuit issued its ruling under the Constitution’s Election Clause, which gives Congress the final word over election procedures. According to the U.S. Constitution, states have authority to decide “the time, place and manner” of holding federal elections, but Congress is also authorized to “make or alter such regulations.”

The Election Clause is distinct from the Constitution’s Supremacy Clause, which is often cited as a basis for federal law preempting state law. The latter, however, generally presumes that a state law is not preempted without clear direction from Congress. Under the Election Clause, the Ninth Circuit found, Congress did not have to provide that it had a clear intention in the NVRA to override state procedures.

In its appeal to the Supreme Court, Arizona is arguing that the Ninth Circuit’s formulation of the Election Clause was incorrect and that the state’s proof of citizenship requirement should stand.

Arizona’s broader argument, though, is that the Election Clause only applies to the “time, place, and manner” of elections, leaving states the exclusive power to determine voter qualifications. Under this theory, if the NVRA were interpreted as telling states which voter qualifications to accept, the NVRA would be an unconstitutional infringement on state’s rights.

If the Court were to accept Arizona’s argument about the narrow scope of federal power under the Election Clause, such decision could significantly shift the power between states and federal government for regulating elections. Given the recent wave of legislation that makes it harder for many Americans to access the polls, voting rights advocates fear that giving states the exclusive power to determine “voter qualifications” could offer some state legislators with a new legal toehold to defend voter suppression efforts.

Adopted as ALEC Bill

Arizona Proposition 200 became law in 2004 and required election officials to reject voter registration forms that did not include documentation proving citizenship.

The law was another piece of anti-immigrant legislation supported by Arizona state Senator (and then-ALEC member) Russell Pearce. After Proposition 200 became Arizona law, Pearce brought the bill to ALEC, and in 2008 the “private sector” (corporate lobbyists and special interest group representatives) and legislative members of ALEC’s Public Safety and Elections Task Force adopted Proposition 200 as a “model” they titled the Taxpayer and Citizen Protection Act. (In 2009, that task force also adopted the “model” Voter ID Act, and versions of the legislation were proposed in numerous state legislatures over the following years.)

Pearce was also behind Arizona’s controversial SB 1070 law that required local law enforcement enforce federal immigration law. That same ALEC task force — whose corporate members included representatives of the private prison and private bail industries — approved the bill that became SB 1070 as an ALEC model in December 2009, before it was introduced in the Arizona legislature, in 2010. The U.S. Supreme Court struck down many parts of that law in June of 2012.

In 2011, Pearce was recalled by his constituents, largely because of his cozy relationships with out-of-state special interests and his controversial stances against immigrants.

Now-former State Senator Pearce nonetheless weighed-in on the Arizona v. Inter Tribal Council of Arizonacase before the Supreme Court with an amicus brief, as did his ally, Kansas’ anti-immigrant Secretary of State, Kris Kobach, among others.

Third Time AZ Law Goes to the Supreme Court

This is the third time Arizona’s law has been considered by the highest court in the country. In 2006, the Justices allowed Arizona to use the ballot measure provisions for elections that year, but without deciding on the validity of the law.

After that, the law was again challenged by civil rights organizations and voting rights advocates, which ultimately led the Ninth Circuit to hold that Arizona’s Proposition 200 (the ALEC Taxpayer and Citizen Protection Act) was preempted by the NVRA.

In June of 2012, the U.S. Supreme Court declined to stay the Ninth Circuit’s decision, which had the effect of allowing the law to remain blocked for the 2012 elections. A full appeal is now before the court.

Oral argument in the case is scheduled for 10am Eastern on Monday.

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