Dan Tokaji's Blog
Professor Dan Tokaji
Election reform, the Voting Rights Act, the Help America Vote Act, and related topics -- with special attention to the voting rights of people of color, non-English proficient citizens, and people with disabilities

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Equal Vote
Monday, August 15
More on the Arizona ID Fight
Today's Arizona Capitol Times has this report on the latest regarding the implementation of Arizona's Proposition 200, which requires voters to present ID when they appear at the polls. Supporters of the measure are now threatening to go to court to make the Governor implement Proposition 200. They cite this letter from the U.S. Department of Justice regarding voter ID requirements. As I explained here, DOJ's letter asserts -- quite erroneously -- that a state could deny provisional ballots to those who lack ID, without violating the Help America Vote Act. In fact, HAVA sections 302 and 303 could hardly be clearer on this point. Remarkably, DOJ's letter didn't even mention the latter section.

Moreover, the question of whether Proposition 200's ID requirements are consistent with HAVA is distinct from whether they are in compliance with the Voting Rights Act. Because Arizona is covered by Section 5 of the Voting Rights Act (see here), any changes must be precleared by the Department of Justice to make sure that they're not "retrogressive" -- i.e., that they don't make racial minorities worse off. That's an entirely separate question from whether the ID requirements of Proposition 200 comply with HAVA.

It's thus hard to see how the supporters of Proposition 200 could sue to enforce its requirements, when 1) the Secretary of State just disclosed her plan for implementing the ID requirement late last week, and 2) the changes have apparently not been precleared for compliance with the Voting Rights Act. Moreover, if the state were to enforce Proposition 200 in the manner that the Secretary of State has reportedly recommended -- that is, to deny provisional ballots to those without ID -- it would place itself in violation of HAVA.

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Moritz College of Law The Ohio State University