The key portion of a 2004 Arizona law that required residents to show proof of U.S. citizenship in order to register to vote in a federal election was struck down by the Supreme Court Monday, but it may not be as big a victory as opponents of the law hope.
In a 7-2 ruling, the justices determined that the federal registration form, which requires applicants to affirm they are U.S. citizens upon penalty of perjury, preempts the state provision. Groups that filed a lawsuit against the Arizona law said it was too great a burden and violated the 1993 National Voting Rights Act.
Justice Antonin Scalia, one of the court's most conservative, sided with the majority in the Arizona v. The Inter Tribal Council of Arizona, Inc. decision to strike down the Arizona law – a ballot initiative known as Proposition 200.
"We conclude that the fairest reading of the statute is that a state-imposed requirement of evidence of citizenship not required by the federal form is 'inconsistent with' the NVRA's mandate that states 'accept and use' the federal form," Scalia wrote. "We note, however, that while the NVRA forbids states to demand that an applicant submit additional information beyond that required by the federal form, it does not preclude states from 'deny[ing] registration based on information in their possession establishing the applicant's ineligibility.'"
Justices Clarence Thomas and Sam Alito, also conservatives, each offered a dissent of the opinion stating that the federal form should not supersede Arizona's law.
The American Civil Liberties Union touted the ruling saying it helped preserve citizens' right to register to vote.
"This decision reaffirms the principle that states may not undermine this critical law's effectiveness by adding burdens not required under federal law. In doing so, the court has taken a vital step in ensuring the ballot remains free, fair and accessible for all citizens," said Laughlin McDonald, special counsel and director emeritus of the ACLU's Voting Rights Project, in a release.
But Hans von Spakovsky, a senior legal fellow at the Heritage Foundation, says Scalia's opinion left plenty of room for Arizona to tweak its law and maintain the proof of citizenship requirement.
"This really doesn't settle the issue," he says. "At the very end of Scalia's opinion he says they can request the [U.S. Elections Assistance Commission] to put in a state specific instruction and if the EAC refuses to do it, then they can sue them under the administrative practices act."
Von Spakovsky says similar laws exist in other states, such as Kansas and Georgia.
"I don't think they foreclosed Arizona simple amending its statute to do what Kansas did – Kansas also has a requirement like this but that law was designed and written by Kris Kobach, the secretary of state, and he anticipated that this might happen," he says. "The Kansas law says if you submit a federal form you will get registered to vote however you won't be able to vote until you provide proof of citizenship."
Finally, the court did not rule on the constitutionality of requiring proof of U.S. citizenship to register to vote. If a resident chose to register to vote using the Arizona form – which requires proof – rather than the federal form, it will still allow that person to vote.
Last year, the court ruled against many key provisions in another controversial Arizona law, this one concerning immigration and requiring residents to carry proof of citizenship at all times.