En Banc 9th Circuit Decides Very Important Voter ID and Voter Registration Case from Arizona

[For updated coverage, see here.]

The Ninth Circuit, sitting en banc, has decided a major election law case, Gonzalez v. Arizona. The majority opinion by Judge Ikuta begins:

Proposition 200 requires prospective voters in Arizona to provide proof of U.S. citizenship in order to register to vote, see Ariz. Rev. Stat. § 16-166(F) (the “registration provision”), and requires registered voters to show identification to cast a ballot at the polls, see Ariz. Rev. Stat. § 16-579(A) (the “polling place provision”). This appeal raises the questions whether Proposition 200 violates § 2 of the Voting Rights Act of 1965 (VRA), 42 U.S.C. § 1973, is unconstitutional under the Fourteenth or Twenty-fourth Amendments to the Constitution, or is void as inconsistent with the National Voter Registration Act of 1993 (NVRA), 42 U.S.C. §§ 1973gg et seq. We uphold Proposition 200’s requirement that voters show identification at the polling place, but conclude that the NVRA supersedes Proposition 200’s registration provision as that provision is applied to applicants using the National Mail Voter Registration Form (the “Federal Form”) to register to vote in federal elections.

A few thoughts:

1. The ruling on the registration provision is very important.  Arizona can continue to use a form for voter registration which requires proof of citizenship. But as to registering in federal elections, Arizona must accept the “federal form” (promulgated by the EAC) which does not require proof of citizenship. Congress has the power to make Arizona accept this form under the Elections Clause of the Constitution.  This means that voter registration drives in Arizona (which may be key to Democrats’ plans for the November election) may use the federal form. (Barring, of course, any further action in this case in the Supreme Court.)

2. The ruling is also important because it contains a major statement of what plaintiffs would need to show if they want to prove that a voter identification law violates section 2 of the Voting Rights Act:

The district court did not clearly err in concluding that Gonzalez failed to establish that Proposition 200’s polling place provision, see Ariz. Rev. Stat. § 16-579, had a disparate impact on Latinos. To prove a § 2 violation, Gonzalez had to establish that this requirement, as applied to Latinos, caused a prohibited discriminatory result. Here, Gonzalez alleged that “Latinos, among other ethnic groups, are less likely to possess the forms of identification required under Proposition 200 to . . . cast a ballot,” but produced no evidence supporting this allegation.34 The record does include evidence of Arizona’s general history of discrimination against Latinos and the existence of racially polarized voting. But Gonzalez adduced no evidence that Latinos’ ability or inability to obtain or possess identification for voting purposes (whether or not interacting with the history of discrimination and racially polarized voting) resulted in Latinos having less opportunity to participate in the political process and to elect representatives of their choice. Without such evidence, we cannot say that the district court’s finding that Gonzalez failed to prove causation was clearly erroneous. Therefore we affirm the district court’s denial of Gonzalez’s VRA claim.

(footnotes omitted).  Judge Berzon concurred in this part of the majority opinion “with that understanding of its limited reach. A different record in a future case could produce a different outcome with regard to the § 2 causation question.”  (Note that the question in the Texas and South Carolina voter identification cases currently pending in federal court in DC is a different question: whether the i.d. laws in those states violate section 5 of the Act, and on that question the states bear the burden of proof.)

3. Dissents: Only Judge Pregerson would have found the voter ID law in violation of section 2 of the VRA.  Judge Rawlinson, in contrast, agreed on the voter i.d. analysis, but disagreed on the question whether Arizona must accept the federal form on registraton. The dissent and Justice Kozinski’s concurrence contain a fascinating discussion of statutory interpretation, including whether to rely on legislative history and also whether something like a clear statement rule should apply in Election Clause cases.  Judge Kozinski calls this a “difficult and perplexing case” and explains why he changed his view of this case since he issued a blistering dissent to an earlier panel opinion.  In that earlier dissent to an opinion (also written by Judge Ikuta, then joined by Justice O’Connor), Judge Kozinski wrote: “he majority distorts two major areas of law before it even reaches the merits. It creates an unprecedented exception to our law of the circuit rule, trampling underfoot a newly minted en banc opinion. The majority also makes a mess of the law of the case analysis by taking issue with a prior panel’s reasoning, not its conclusion. And, as to the merits, the panel comes nowhere close to proving that Gonzalez I’s interpretation of the National Voter Registration Act was wrong, much less clearly wrong. Few panels are able to upset quite so many apple carts all at once. Count me out.”  Relatedly, there’s an important holding on the law of the case doctrine for 9th Circuit procedure geeks in fn. 4 of the majority opinion.

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