According to the syllabus released in connection with the Supreme Court case, ARIZONA ET AL. v. INTER TRIBAL COUNCIL OF ARIZONA , Arizona’s current voter registration citizenship requirement has been struck down for now. But the Supreme Court’s opinion does not prevent the State from moving forward to reintroduce the requirement. It appears that it’s just a technicality standing between Arizona (and perhaps any other state) and a requirement for proof of citizenship in order to register to vote.
The National Voter Registration Act (NVRA), implemented in 1995, requires all states to use the Federal Form. And that’s the problem, the Arizona law requires voter-registration officials to reject any application for registration (including a Federal Form) that is not accompanied by documentary evidence of citizenship. At this time, the Federal Form, developed by the Election Assistance Commission (EAC), does not require “documentary evidence of citizenship; rather, it requires only that an applicant aver, under penalty of perjury, that he is a citizen.”
According to the syllabus, the Supreme Court held that;
“Arizona’s evidence-of-citizenship requirement, as applied to Federal Form applicants, is pre-empted by the NVRA’s mandate that States “accept and use” the Federal Form.”
And, 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.”
The syllabus also explains that it is the responsibility of the states to regulate who can vote in federal elections.
“Arizona is correct that the Elections Clause empowers Congress to regulate how federal elections are held, but not who may vote in them. The latter is the province of the States. See U. S. Const., Art. I, §2, cl. 1; Amdt. 17.
It would raise serious constitutional doubts if a federal statute precluded a State from obtaining the information necessary to enforce its voter qualifications. The NVRA can be read to avoid such a conflict, however. Section 1973gg–7(b)(1) permits the EAC to include on the Federal Form information “necessary to enable the appropriate State election official to assess the eligibility of the applicant.”
That validly conferred discretionary executive authority is properly exercised (as the Government has proposed) to require the inclusion of Arizona’s concrete-evidence requirement if such evidence is necessary to enable Arizona to enforce its citizenship qualification. 1973gg–7(b)(1) permits the EAC to include on the Federal Form information “necessary to enable the appropriate State election official to assess the eligibility of the applicant.”
The NVRA permits a State to request the EAC include state specific instructions on the Federal Form. According to the syllabus, the Supreme Court’s opinion also included instructions to the State of Arizona in the event the EAC should reject or ignore their request:
… a State may challenge the EAC’s rejection of that request(or failure to act on it) in a suit under the Administrative Procedure Act. That alternative means of enforcing its constitutional power to determine voting qualifications remains open to Arizona here. Should the EAC reject or decline to act on a renewed request, Arizona would have the opportunity to establish in a reviewing court that a mere oath will not suffice to effectuate its citizenship requirement and that the EAC is therefore under a nondiscretionary duty to in3 Cite as: 570 U. S. ____ (2013)”
I feel confident that the State of Arizona will take the necessary steps to make the appropriate request to the EAC to include on the Federal Form “information necessary to enable the appropriate State election official to assess the eligibility of the applicant.”