Voter Registration

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A federal judge ruled that Arizona and Kansas can require people to provide proof of citizenship when registering to vote using a federal form. Both states sued the Federal Election Assistance Commission after the commission refused to add a state-mandated proof of citizenship on federal registration forms. Arizona State University law professor Paul Bender will talk about the case.

Ted Simons: Good evening. Welcome to "Arizona Horizon." I'm Ted Simons. A federal judge ruled yesterday Arizona and Kansas can require people to provide proof of citizenship when registering to vote using a federal form. ASU law professor Paul Bender is here to talk about the case. Good to see you.

Paul Bender: This is very complicated.

Ted Simons: Something we talked about before during a Supreme Court review. What did the federal judge rule?

Paul Bender: The federal judge ruled that Arizona could require -- it's complicated. The federal commission, which is called the U.S. elections assistance commission, which is supposed come up with a form that you can use to register to vote in federal elections. The court ruled that Arizona and Kansas can require that form to require people when they register to have proof that there citizens. Birth certificate, driver's license, something like that. The Supreme Court had held last June, U.S. Supreme Court, that Arizona could not do that because the federal law which is called motor voter law, passed in 1993, is intended to make it really easy to register to vote. The Supreme Court held in an opinion by Scalia, not liberals against the conservatives, held the federal law preempts the state law. The state law said -- the federal law says you just have to sign something that says I'm a citizen. It says under penalty of perjury. The Supreme Court says that's why federal law intended. Arizona cannot impose that except it said at the end of the opinion, a hint, you could go back to the commission, they tried this once before and the commission turned them down. You could ask the commission to change the federal form for Arizona and say on the federal form for Arizona that you have to have proof of citizenship. You can ask them. They should give it to you if you need to have them do that in order for you, Arizona, to be able to enforce your requirement that people be citizens to vote. They went back to the commission. The commission turned them down again in a big, long opinion and they went to a federal District Court and Scalia says if the commission turns you down you can take it to federal court. The court overturned the commission and said the commission was wrong, the commission had to give them this change and had to let them. Remember, we're only talking about federal elections. That's one thing that makes it complicated there are federal and state elections. Federal elections are ones for Senate and Congress and presidential electives. Everything else is state. The Supreme Court's decision said you can't require people to prove citizenship to vote in elections. The state was planning to have two different registration systems. This decision yesterday if it stands relieves the state of that obligation because you would have one registration system and to vote in any election you would have to register to vote and prove you're a citizen.

Ted Simons: We should note that this case was heard at the -- the federal judge heard this in Kansas as opposed to Arizona, which is untheun th circuit for obvious reasons.

Paul Bender: The 9th circuit has ruled in this area before the Supreme Court decision. Supreme Court digs involved Arizona. They had ruled against Arizona. Very close decision, by the way, I think 6 to 5. Sure, they wept to a different circuit. They figured they would lose in the 9th circuit.

Ted Simons: Talk about the judge's reasoning, why he decided what he did.

Paul Bender: That's a hard question to answer. The opinion is so bad, it's very hard to understand the reasoning behind it. What the Supreme Court said in June, it said, look, under the federal law you don't need to prove citizenship to register to vote in federal elections but the federal law has a provision that let's states go to this commission and make changes in the federal law that is state specific. You could go back to the commission, and if you could convince the commission that you need this to make sure that only citizens rote, then -- vote, the commission should give you this change. The commission said you don't need that. There are all kinds of ways you can get noncitizens off the voting rolls. Let them register first, then if you think they are not citizens you can challenge them and take them off the rolls. It makes a big difference, Ted, because under the Arizona system, which this judge is now permitting them to use, you can filter out a whole lot of people who are eligible to vote, they come to register, they don't have a birth certificate. Sorry, you have to get a birth certificate. It's hard to get, it costs money, it's a pain in the neck, so thousands and thousands of eligible people will be stopped from voting because they Don have the document with them whereas if you do what the commission said you should do, you let all those people register, then if you think some of them are not citizens you can challenge them individually. There you get the noncitizens off the rolls but you won't keep the citizens who you keep off the roles by this pre-challenge requirements of having birth certificates when you register.

Ted Simons: Sounds like a judge said the elections commission had no right to deny the state's request. That's what he said. Does that make sense?

Paul Bender: No. No. It doesn't make sense even in Scalia's opinion. He said you can request the commission to give you this if you can prove you absolutely need it. The judge says they have a right to get it from the commission.

Ted Simons: Basically why request it? Basically wait for the answer yes.

Paul Bender: If this judge was right Scalia would have said you have a right to this. Go to the commission and they have to give it to you. He didn't say. That that's why I think the opinion is so weak. I would suspect there will be an appeal.

Ted Simons: Does it survive an appeal?

Paul Bender: I wouldn't think so.

Ted Simons: Does it go to the Supreme Court?

Paul Bender: It could very well be. They had this case once before. They frequently take a case they have had before.

Ted Simons: The issue of we should mentioned Secretary of State said he was delighted with the decision. The Attorney General said that it's a victory for election integrity and voter fraud is a significant problem in Arizona. How big an issue is voter fraud in Arizona?

Paul Bender: That's something, there's some controversy about that. The commission's opinion talks about there is very, very little evidence of voter fraud of this kind in either Kansas or in Arizona. It's a tiny, tiny, like one thousandth of 1% of voters who try to register to vote are not citizens. It's a tiny, little problem. What you have is a solution to basically a nonproblem. The commission said, not only don't you need this but you don't have any real problem to work on. It's a tiny problem. In order to solve a very, very small problem a lot of people worry about illegal immigrants. If you were illegal would you try to register to vote? You're turning yourself over to immigration authorities by doing that. There are not going to be a lot of people who try to register to vote. The kind of thing the Arizona thing does, as I said before it stops a whole lot of people from registering who have a right to register but don't have the document with them. And in order to solve a problem that's a tiny little problem of maybe a few people will fall through the cracks and vote where they are not citizens.

Ted Simons: You mentioned motor voter law and how this was the impetus for getting this federal form that is easy to fill out under penalty of perjury.

Paul Bender: It was Miami International Airport to be something you did with a postcard. You can't attach a birth certificate to a postcard.

Ted Simons: From does that play into what Congress wanted as opposed to what Arizona wants?

Paul Bender: This is a preemption case. I have been saying it's really complicated because there are state elections and federal elections. The state gets the right to say what the qualifications are for a voter. But Congress gets the right to monitor -- make the rules for federal elections to how they proceed, registration rules and things like that. So when Congress exercises this power to regulate federal elections it's exercise of power predominates over the state. The state has a right to require you to have birth certificate to register to vote in state elections, but if Congress says, no, we don't want that for federal elections, Congress' right is superior. That's what the court held in June.

Ted Simons: Thus the two-tier system, which probably will be in play if this is appealed, correct?

Paul Bender: If it is stayed on appeal and reversed there would be a two-tier system unless the state gave up on prop and said okay, we'll let them register to vote in state elections without that and we'll do what the commission said they could for state elections as well as federal. If you see people who are registering and you don't think they are citizens, attack them by removing them from the rolls.

Ted Simons: Timetable on this? What do you see?

Paul Bender: I think there would be a motion for stay before the 10th circuit tomorrow or early next week. Then there will be an appeal. Appeals can take several months at least before the appeal would be argued. There's no real -- when is the next election?

Ted Simons: Primaries are in August.

Paul Bender: So the court may think there's some urgency to it so they may do it but won't do it any faster than a few months.

Ted Simons: All right, always a pleasure. Good to see you.

Paul Bender:Law Professor, Arizona State University;

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