Arizona law may restrict voting in local elections

October 9, 2013
A man enters a voting booth at a polling station (Photo by Andrew Burton/Getty Images)
(Andrew Burton/Getty Images)

Arizona residents who registered to vote using forms provided by the federal government will not be allowed to vote in state and local elections next year, according to an opinion issued by the state’s attorney general, setting up the possibility of a two-track electoral system that will cost hundreds of thousands of dollars and impact just a small handful of voters.

In a legal opinion [pdf] presented to Secretary of State Ken Bennett (R), Attorney General Tom Horne (R) said voters who registered using a federal registration form but failed to provide a document proving their citizenship are eligible to vote in federal elections, but not in state and local elections.

Horne also held that voters who registered using the federal form won’t be eligible to sign petitions for candidates or ballot initiatives.

The federal registration form, created as part of the 1993 National Voter Registration Act, better known as the Motor Voter law, requires voters to certify, under penalty of perjury, that they are citizens eligible to cast a ballot.

But in 2004, Arizona voters passed Proposition 200, a measure that required voters to go farther than the federal rules and present proof of citizenship, such as a driver’s license number, a photocopy of a birth certificate or a passport. State-printed voter registration forms require that proof of citizenship; federal forms do not.

A native American tribe led a group of Arizona residents to sue to force the state to follow federal law, rather than the stricter state standard. And in June, the Supreme Court agreed that federal election law preempted the state’s rules. The Constitution, Justice Antonin Scalia wrote for a 7-2 majority [pdf], gives Congress the power to alter regulations on who may vote.

But, Horne said Monday, the court’s opinion only applied to federal elections, not state and local elections. Meanwhile, the 9th Circuit Court of Appeals held that the Motor Voter law didn’t preclude Arizona from requiring evidence of citizenship for state elections.

“Because Arizona law requires a registration applicant to provide evidence of citizenship, registrants who have not provided sufficient evidence of citizenship should not be permitted to vote in state and local elections unless such a dual registration system is invalid under the federal or state Constitution,” Horne wrote to Bennett. And the courts have yet to rule on whether the dual registration system is invalid based on the evidence-of-citizenship requirement.

The opinion means Arizona counties will have to print two separate ballots: One set that will allow voters who used the state form to register to vote in federal, state and local elections, and one that will allow voters who used the federal form to register to vote only on federal elections.

Maricopa County Elections Director Karen Osborne told the Arizona Republic on Tuesday that the change would cost her county, the largest in the state, about $250,000. Osborne said only about 900 voters in the county — which had 1,915,531 registered voters [pdf] as of July — will be impacted.

A spokesman for the Secretary of State’s office said in an e-mail that the fact the Supreme Court didn’t strike down Arizona’s stricter state form has put both Bennett and Horne in the middle of a controversy over how to square divergent state law and federal law.

Voting rights advocates slammed the ruling as a new set of hurdles to clear before legitimate voters can cast a ballot. In a scathing editorial published Monday night, the Republic blasted Horne, who is seeking reelection, and Bennett, who is running for governor, for playing politics.

“[T]wo of Arizona’s top elected officials are ready with a separate but unequal voter registration scheme that attacks the non-existent problem and undermines efforts to increase voter registration,” the paper’s editorial board wrote. “There’s no mystery about who gains when Bennett asks the questions and Horne answers with an attorney general’s opinion that will be a big applause line among GOP primary voters.”

Reid Wilson covers state politics and policy for the Washington Post's GovBeat blog. He's a former editor in chief of The Hotline, the premier tip sheet on campaigns and elections, and he's a complete political junkie.
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Reid Wilson · October 8, 2013