electionline Weekly

In Focus This Week

Arizona Secretary of State prepares for legal action against the EAC
Proof of citizenship requirement remains controversial

By Sean Greene
electionline.org

An unresolved debate at the federal Election Assistance Commission (EAC) over changing Arizona’s instructions for the federal mail-in voter registration form has prompted Secretary of State Jan Brewer (R) to move forward with legal action against the federal agency.

The bipartisan commission has been split for months on whether to amend the state’s instructions to include Arizona’s 2004 requirement that voter registration applications include documents that indicate proof of citizenship.

Two weeks ago, art a meeting in Denver, the four EAC commissioners- two Democrats and two Republicans – again deadlocked 2-2 along party lines on Arizona’s request to make the change and a frustrated Brewer said she wants to move the debate to the courts. Minor changes to instructions in seven other states were approved at the same meeting.

“I have directed the Arizona Attorney General’s office to prepare a legal filing for injunctive relief against the EAC,” Brewer stated. “It is a sad day when a state is forced to sue the federal agency to compel that agency to do what is required of it under law.”

The disagreement at the EAC stems from whether federal law and the National Voter Registration Act (NVRA) preempt state law when it comes to regulating the process for registering voters in federal elections, or whether the EAC is overstepping its bounds by not making changes concerning state-mandated voter eligibility requirements.

In a March 2006 letter to Brewer, Tom Wilkey, executive director at the EAC, stated that federal law pre-empted Arizona’s in relation to the federal form.

Since then, the EAC commissioners have been divided on the issue with the two Republican members, vice chair Caroline Hunter and past chair Donetta Davidson, disagreeing with Wilkey’s letter and their Democratic counterparts.

Hunter voted to approve Arizona’s request at the recent meeting.

“The state instructions portion of the federal mail voter registration application should properly reflect the eligibility requirements for each state.  Article 1 Section 2 and the Seventeenth Amendment of the Constitution reserve to the states the power to establish voter eligibility requirements,” Hunter stated.  “The EAC should properly reflect Arizona law unless and until the law is overturned by a court, the Arizona state legislature, or by vote of the citizens of Arizona.”

Arizona’s requirements relating to proof of citizenship have thus far withstood legal challenges. (The Ohio State University’s Moritz College of Law has detailed information and links to court documents relevant to the ongoing case, Gonzales v. Arizona.)

EAC Chair Rosemary Rodriquez (D) voted against making the change.

“NVRA requires states to ‘accept and use the form’ and at least one court of appeals – the 11th Circuit – has held that the state must accept and use the form even where the state law differs from the federal law with regard to accepting the form. In other words, state law must bend to the NVRA,” she said.

While the EAC debate continues, hundreds of potential voters have not been registered because they have filed federal voter registration applications without proper proof of citizenship. Brewer lays the blame for this squarely on the federal agency.

“How ironic that the U.S. Election Assistance Commission’s inaction has directly led to hundreds of voter registration forms being rejected. Having even one voter disenfranchised due to government’s inaction is one too many, yet in this case we have over 200 such examples,” she said. 

Helen Purcell, recorder for Maricopa County, the state’s most populous jurisdiction, reported that her office rejected 114 federal form applications in 2006 and 13 in 2007 for not providing the proper proof of citizenship. None have been rejected so far this year.

Michael Slater, deputy director of Project Vote which is a plaintiff in the lawsuit against Arizona, disagrees with Brewer’s premise.

“Brewer stands the question on its head — it is the state that is impeding its citizens’ rights to register by imposing requirements that are clearly prohibited by both the language and the legislative intent of the NVRA,” he said. “The reality is that documentary proof of citizenship requirements are a solution in search of a problem. The problem…is that, like ID requirements in general, it is most burdensome on low income and minority citizens.”

Slater pointed to the legislative history of NVRA. When debating the bill in 1993, conferees removed an amendment added by the U.S. Senate that would have allowed states to require proof of citizenship, saying it wasn’t necessary or consistent with the legislation.

With potential legal action looming, Hunter hopes the commission can quickly resolve the issue and allow Arizona’s changes, although she sympathizes with Brewer’s position.

“I understand Secretary Brewer’s frustration with the EAC,” Hunter said. “I also understand why she believes that she has exhausted every option and may have to sue the EAC in order to have the form updated to reflect current Arizona state law.”