In its 2013 decision in Arizona v. The Inter Tribal Council of Arizona, the Supreme Court ruled 7-2 that Arizona's proof of citizenship law for voter registration violated the 1993 National Voter Registration Act (NVRA).
In 2004, Arizona voters approved Proposition 200, a stringent anti-immigration law that included provisions requiring proof of citizenship to register to vote and government-issued photo ID to cast a ballot. Last year, the US Court of Appeals for the Ninth Circuit blocked the proof of citizenship requirement, which it said violated the NVRA. Under the 1993 act, which drastically expanded voter access by allowing registration at public facilities like the DMV, those using a federal form to register to vote must affirm, under penalty of perjury, that they are US citizens.
Twenty-eight million people used that federal form to register to vote in 2008. Arizona's law, the court concluded, violated the NVRA by requiring additional documentation, such as a driver's license, birth certificate, passport or tribal forms. According to a 2006 study by the Brennan Center for Justice, at least 7 percent of eligible voters "do not have ready access to the documents needed to prove citizenship." The Supreme Court affirmed the lower court ruling, finding that states like Arizona could not reject applicants who registered using the NVRA form.
Now Arizona and Kansas -- which passed a similar proof-of-citizenship law in 2011 -- are arguing that the Supreme Court's decision applies only to federal elections and that those who register using the federal form cannot vote in state and local elections. The two states have sued the Election Assistance Commission and are setting up a two-tiered system of voter registration, which could disenfranchise thousands of voters and infringe on state and federal law.
The tactics of Arizona and Kansas recall the days of segregation and the Supreme Court's 1896 "separate but equal" ruling in Plessy v. Ferguson. "These dual registration systems have a really ugly racial history," says Dale Ho, director of the ACLU's Voting Rights Project. "They were set up after Reconstruction alongside poll taxes, literacy tests and all the other devices that were used to disenfranchise African-American voters."
In the Jim Crow South, citizens often had to register multiple times, with different clerks, to be able to vote in state and federal elections. It was hard enough to register once in states like Mississippi, where only 6.7 percent of African-Americans were registered to vote before the passage of the Voting Rights Act of 1965. And when the federal courts struck down a literacy test or a poll tax before 1965, states like Mississippi still retained them for state and local elections, thereby preventing African-American voters from replacing those officials most responsible for upholding voter disenfranchisement laws.
The Voting Rights Act ended this dichotomy between federal and state elections by prohibiting racial discrimination in voting in all elections. Section 5 of the Act, which the Supreme Court eviscerated earlier this year in Shelby County v. Holder, prevented states with the worst history of voting discrimination -- like Mississippi -- from instituting new disenfranchisement schemes. It was Section 5 that blocked Mississippi from implementing a two-tiered system of voter registration following the passage of the NVRA in 1993, which the state claimed applied only to federal elections. (A similar plan was stopped in Illinois under state court.) Arizona -- another state previously subject to Section 5 based on a long history of discrimination against Hispanic voters and other language minority groups -- is making virtually the same rejected argument as Mississippi in the 1990s, but, thanks to the Roberts Court, no longer has to seek federal approval to make the voting change. The revival of the dual registration scheme is yet another reason why Congress should revive Section 5.
The proposed two-tiered system of voting and the harmfulness of proof-of-citizenship laws warrant legal scrutiny. Over 30,000 voters were prevented from registering in Arizona after its proof-of-citizenship law passed in 2004. In Kansas, 17,000 voters have been blocked from registering this year, a third of all registration applicants, because the DMV doesn't transfer citizenship documents to election officials. The ACLU has vowed to sue Kansas if the state continues its noncompliance with state and federal law.