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Supreme Court Strikes Down Arizona's Voter Eligibility Law in Case Brought by Native Americans; Members of Congress Respond

The United States Supreme Court handed down an important decision this week in Arizona v. Inter Tribal Council of Arizona that clarifies some of the powers of Congress and states when it comes to determining who can vote and how they can vote. A number of states, such as Arizona, have sought in recent years to impose new requirements on the right to vote. In Arizona’s case, the state sought to limit voter registrations by requiring new applicants to show proof of their citizenship.

The Court struck down Arizona’s voter registration law by a 7-2 margin. The Court held that the federal National Voter Registration Act of 1993, more commonly known as the “Motor Voter Act,” and its basic registration form sets the national standard for registering new voters, and states may not impose additional requirements.

The Motor Voter Act established the Election Assistance Commission (EAC) and gave it the responsibility of developing a simple form that states must accept and use for the registration of voters. That form requires an applicant to sign a statement, under penalty of perjury, that he or she meets the state’s specific eligibility requirements.

In 2004 Arizona voters passed Proposition 200 which required election officials to reject applications that did not include proof of citizenship. Thereafter Arizona began requiring new voters to provide, in addition to the sworn statement, proof of citizenship – such as a birth certificate, passport, BIA card, tribal treaty card, or tribal enrollment number – in order to register to vote. Native Americans, represented by the Inter Tribal Council of Arizona, Inc., and the Hopi Tribe sued Arizona to block enforcement. They pointed out that BIA cards and tribal treaty cards are not used in Arizona and several tribes do not issue tribal enrollment cards or use enrollment numbers.

The Supreme Court struck down Arizona’s new registration requirements holding that they were preempted by the federal law. The Court held that the Elections Clause of the U.S. Constitution empowers Congress to regulate how federal elections are held, but not who may vote in them. Justice Scalia, writing for the majority, reaffirmed Congress’s power to regulate elections but, he also appeared to read the Constitution to allow states to ultimately determine who is qualified to vote. Thus, the controversial issues of voter access and voter disenfranchisement remain unresolved. We also note that the Supreme Court will shortly issue another major voting rights decision in Shelby County v. Holder which will address the constitutionality of Section 5 of the Voting Rights Act which requires certain jurisdictions to obtain preclearance from the federal government for all electoral changes.

Congressional Response
In response to the Supreme Court’s ruling in Arizona v. Inter Tribal Council of Arizona, Senator Cruz (R-TX) has filed an amendment (SA 1295) to the Senate’s comprehensive immigration reform bill (S 744) that would amend the Motor Voter Act to allow states to require “proof of citizenship” as a prerequisite for voter registration. Congressman Salmon (R-AZ) has introduced a bill (HR 2409) along the same lines which would amend the Motor Voter Act to allow states to require “documentary evidence of citizenship” while a nearly identical bill (HR 2403) introduced by Congressman Gingrey (R-GA) would more vaguely allow states to require “additional information.”

Please let us know if we may provide additional information regarding the Supreme Court’s Ruling in Arizona v. Inter Tribal Council of Arizona or subsequent legislation that has been introduced in response.