October 26, 2010

Breaking News: Ninth Circuit, on 2-1 Vote with Strong Kozinksi Dissent, Holds that Arizona Requirement of Proof of Citizenship to Register to Vote is Preempted by the National Voter Registration Act

Judge Ikuta, joined by Justice Sandra Day O'Connor, sitting by designation, wrote the majority opinion in this case. A snippet:

    More broadly, Proposition 200 is not in harmony with the intent behind the NVRA, which is to reduce state-imposed obstacles to federal registration. It is indisputable that by requiring documentary proof of citizenship, Proposition 200 creates an additional state hurdle to registration. As indicated in our overview, supra Part C.2, the NVRA was sensitive to the multiple purposes of a federal voter registration scheme, including the need "to establish procedures that [would] increase the number of eligible citizens who register to vote in elections for Federal office" and the need to protect "the integrity of the electoral process." § 1973gg(b). The balance struck by the EAC pursuant to § 1973gg-7(a) was to require applicants to attest to their citizenship under penalty of perjury, but not to require the presentation of documentary proof. Id. Proposition 200's additional requirement is not consistent with this balance.

The majority rejected constitutional and statutory challenges to Arizona's voter identification requirement.

Judge Kozinski dissented on the proof of citizenship issue. His dissent concludes:
    The 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.

Strong words, which makes me think that Judge Kozinski will be pushing hard for en banc reconsideration of this case.

Posted by Rick Hasen at October 26, 2010 10:10 AM