Voter Registration

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Arizona Attorney General Tom Horne issued a legal opinion this week that says those who register to vote in Arizona using a federal form can only vote in federal elections, while those who register to vote using a state form can vote in all elections. His opinion comes after a U.S. Supreme Court ruling that requires Arizona to allow people to register to vote using a federal or state form. Horne and Alessandra Soler of the Arizona ACLU will discuss his legal opinion.

Ted Simons: Good evening, and welcome to "Arizona Horizon." I'm Ted Simons. A legal opinion by Attorney General Tom Horne has Arizona preparing for a dual voting system for future elections. The opinion states that those who register to vote in Arizona using a federal form without showing proof of citizenship can only vote in federal elections. Those who register using a state form, which requires proof of citizenship can vote in all elections. The opinion comes after a U.S. Supreme Court ruling that requires Arizona to allow people to register to vote using federal or state forms. Joining us now is Arizona Attorney General Tom Horne and here with an opposing view is Alessandra Soler of the Arizona ACLU. Good to have you both here. Thank you so much for joining us. That pretty much what your opinion was this week?

Tom Horne: That was my opinion. I'll just say as to the U.S. Supreme Court, the U.S. Supreme Court said that federal law prevents us from asking for evidence of citizenship on the federal form but they went on to say Arizona is correct in saying that it's of questionable constitutionality for the federal government to prevent the state from getting information it needs to be sure voters are qualified, but instead of ruling on that they sent it to the lower courts. I think we're ultimately going to win that. So what I've proposed is a stop gap. As long as we have to accept the federal form without evidence of citizenship, that should be for federal elections only.

Ted Simons: Talk about why this is not right as far as you see it. There is an Arizona voter mandate requiring that proof of citizenship. How do you balance things?

Alessandra Soler: Sure. I think we respectfully disagree with Attorney General Horne. We do not believe there's anything in the state law or federal law that requires the creation of these two-tiered voting system, and for good reason. It's extremely burdensome for county elections officials, it's costly, and I think ultimately it makes it harder for people to vote. And I think this proposal is going to -- There's also a very good reason why in this country we do not have dual voting systems. They harken back to a time when a terrible time in our history when there -- When these systems discriminated against individuals.

Ted Simons: You're saying this was not a requirement on the states?

Alessandra Soler: No.

Ted Simons: How do you respond to that?

Tom Horne: It is a requirement. It was a proposition passed by the voters overwhelmingly that said that in order to register to vote, you must provide evidence of citizenship. So we don't have illegal aliens voting. We just want citizens to vote. And the federal form just has a signature. Someone who is willing to vote fraudulently is willing to sign falsely. There's no protection against fraudulent voting. And we have a district court judge who said fraudulent voting really is a significant problem in Arizona, it's a significant -- It's a legitimate end of government to prevent that fraudulent government.

Ted Simons: Talk to us again about how much of a problem this is and how it addresses that problem.

Alessandra Soler: Tom and I, as most people agree, ineligible people should not be voting. But what we're talking about right now is, it's the question of -- This proposal is way out of line, and it's a major policy shift locally. Up until the Supreme Court decision, up until this opinion, anybody who voted using a federal form is also registered for state elections. And it's what happens across the country. One of the reasons why we have federal laws including the National Voter Registration Act is to create, make voting registration simpler, and that's the subject of the Supreme Court case.

Ted Simons: Isn't that the intent of the Motor Voter Law, the idea of making voting simpler? Also, are you -- Problems at the polls, we had last time, is this only going to make those worse? Confusion among voters? Is this only going to make that worse?

Tom Horne: There are some things that cause confusion, but this is not that complicated. This is simple. If you registered on the federal form without giving evidence of citizenship, you vote in federal elections only. And in fact, the ninth circuit, when they overruled us, in the district court we won the case. So we had -- We were able to require citizenship of everybody on both ballots. But the ninth circuit overruled us, they said specifically Arizona's free to require this for state elections, but it's only for federal elections that they felt we were bound by the National Voter Registration Act. And after the Supreme Court decision, the district court that implemented it said essentially the same thing,that we are required for federal elections only to allow people to register with the federal form, where there's no evidence of citizenship required until I'm hoping we ultimately win this other case.

Alessandra Soler: Every state in the country except now for Arizona and Kansas, accept the federal form and allow people to vote in state elections. I think the system works, it includes -- We believe that the affirmation it requires citizenship, you've got to affirm under threat of perjury that you are a citizen, and it's worked up until now. And there have not been additional problems with voter registration fraud.

Tom Horne: Let's talk about whether it's worked. The federal district court found voter fraud was a significant problem. Let's talk about what was the evidence of that? The jury commissioner sent forms to a small percentage of Arizonans. And people can send them back saying I'm not a citizen so I don't have to serve on the jury. When they do that, the jury commissioner send those to the county recorders and see if those people are registered to vote. In the year we had the trial they found over 200 people who had said they're not citizens on the jury commissioner form that had registered to vote and many had voted. Since those forms go only to a tiny percentage of Arizonans, you have to multiply many times that in order to arrive at the number of people who registered fraudulently in the state as a whole. So the judge found that fraudulent voting was a significant problem in the state and they had a legitimate interest to pass this legislation requiring evidence of citizenship.

Ted Simons: Were those voters prosecuted?

Tom Horne: About seven of them were out of the 200.

Ted Simons: Someone would hear the number seven and say we don't have a serious problem.

Tom Horne: The county attorneys usually have higher priorities. They're dealing with rape and murder and burglary, so they don't like to pursue these cases. So they only pursued seven of the 200. But the 200 is a very small percentage of the problem statewide, because only -- That was only the people in the small sample that got the jury commissioner forms. If you multiply that percentage times by the whole state, you get a significant number of people who registered fraudulently.

Alessandra Soler: There have been analyses done across the country, and the numbers are very small. And I think what we're dealing with here is citizens, the majority of whom are eligible, are the ones that are going to suffer, because now we have a system where we have to -- The county elections officials will have two voter rolls, which means they're going to have to verify, maintain, keep two different voter rolls, it will exacerbate problems, longer lines, more provisional ballots. The people that are going to be -- It's voters that are now going to have to deal with this --

Tom Horne: Let me just say the -- Another interesting finding of the district court judge after a lengthy trial was that the requirement to provide evidence of citizenship is not burdensome. In other words, you can write down your driver's license, naturalization number, your travel registration number, your nonvoter operating license number. Or if you don't have those things, there are other choice like your passport or birth certificate.

Ted Simons: What if you don't have those things, which some folks don't have and probably as much if not more that number than what you've talked about in terms of fraud?

Tom Horne: Out after state of 6 million people, they were able to find one person who had none of those things.

Ted Simons: One person.

Tom Horne: Because she was 90 years old and she was born in the south before they gave birth certificates. And I'm sure in her case they will let her vote.

Alessandra Soler: That's not what we're talking about. We're talking about complete -- Creating two dual voting system, which is nonexistent in this country. There's a reason why they have been declared unconstitutional and discriminatory, why we're not using them, because even Scalia in the Supreme Court decision said dual -- Two-tiered voting systems are going to be burdensome. And the question is here, should we as government officials, the state of Arizona, make voting harder for no reason, when we weren't requiring that previously and we were allowing people who use the federal form to vote in state elections? A two-tiered system ultimately everyone end up losing.

Tom Horne: That would have been a good argument in the legislature on a policy issue. My I don't know is to enforce the law. The law passed by the overwhelming majority of Arizona voters said to register to vote in Arizona, you must provide evidence of citizenship. The court decisions that I believe have temporarily said we can't do that on federal forms have said we can do it on state forms. If we can do it on state forms the law requires us to do it because it was passed saying you're not a qualified voter unless you provide evidence of citizenship.

Tom Horne: Is this the only way to satisfy state law and federal law? I'm hearing that they had no choice.

Alessandra Soler: I think that's what his interpretation is what -- And what it boils down to. We don't believe that's necessary, and we don't believe there's anything in federal or state law that mandates that. And I think, yes, state elections are administered by state officials and I think this -- The public policy argument and the impact on voters and the additional burden on county elections officials, I think are going to be -- Those are real problems and real harms that all voters will have to deal with.

Tom Horne: What mandate it is proposition 200, which said you're not a qualified voter unless you provide evidence of citizenship.

Ted Simons: Does it concern you that people in Arizona who register to vote, using the federal form without the proof of citizenship, people who register to vote will not be allowed to vote in Arizona?

Tom Horne: They can vote by providing -- By registering with providing evidence of citizenship, then they can vote in the state and local elections.

Ted Simons: They've already registered to vote. And now the state is saying, yeah, but. Does that concern you?

Tom Horne: No. It's a fairly short period. Remember, we won the trial at the district court level so it wasn't until the ninth circuit decision we had to start accepting these federal forms. The overwhelming majority register with state forms. It's less than 10% that use the federal forms. Maricopa County recorder said it was 900 people.

Alessandra Soler: That's just in Maricopa County. There are going to be thousands of people that will be affected statewide. And it really violates the intent and the spirit of the NVRA, which is trying to make voter registration easier.

Ted Simons: The last point, quickly, 30 seconds left, you want to vote in state elections, register through the state. Period.

Alessandra Soler: There are both options available. Voters have both options available. We want to make voting easier.

Tom Horne: The National Voter Registration Act has jurisdiction only over federal elections. They don't have jurisdiction over state elections. And the Arizona voters have passed a proposition which is law and that law is binding on me.

Ted Simons: We have to stop it right there. Good discussion. Good to have you both here.

Tom Horne: Thank you.

Alessandra Soler: Thanks.

Tom Horne:Attorney General, Arizona;Alessandra Soler:ACLU, Arizona;

Author Alan Weisman

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