Arizona SOS: So Sue Me
That's not exactly how Arizona's Republican Secretary of State Jan Brewer responded to the Election Assistance Commission's opinion on the state's registration requirements ... but it's pretty close. In this letter to the EAC's Chair, Secretary Brewer takes issue with the EAC's conclusion that it violates federal law for the state to demand greater proof of eligibility requirements -- specifically, citizenship -- than is provided for by the federally approved form. Brewer labels the position of the bipartisan EAC "completely inconsistent, unlawful, and without merit," and says that she'll instruct counties to do exactly what the EAC says federal law forbids. The Arizona Daily Star has more on this showdown.

What's most interesting about Brewer's letter is that she doesn't provide any reasons for believing that the EAC got the law wrong; she just asserts it. In its March 6 letter to Brewer, analyzed here, the EAC relied on the National Voter Registration Act ("NVRA") which provides that states "shall accept and use the mail voter registration application prescribed by the U.S. Election Assistance Commission." That federal form, in turn, sets the applicable proof requirements. The EAC's letter concluded that states aren't at liberty to impose more onerous requirements. Unfortunately, that's just what Arizona has sought to do through its enforcement of Proposition 200.

Nothing in Brewer's letter provides any rejoinder to the substance of the EAC's legal analysis. She notes that the U.S. Department of Justice "pre-cleared" Arizona's Proposition 200. But as I noted here, and as Brewer must surely be aware, DOJ's preclearance review is limited to whether the proposed change complies with Section 5 of the Voting Rights Act, not the NVRA or any other federal law. It's true that DOJ hasn't yet taken any enforcement action against Arizona, but that doesn't mean that the state is compliant with the law. The DOJ doesn't enforce in every single case where there's a violation, and there's no pressing need for it to do so under the NVRA, especially given that private enforcement actions are allowed. Moreover, does anyone seriously believe that the current Republican-controlled DOJ would take action against a stringent, Republican-backed state registration rule? Let's get real. It's doubtful that DOJ would lift a finger to uphold the NVRA in these circumstances, even in the face of a clear violation, given the partisanship apparent in its recent decisionmaking including on Arizona's Prop 200. (See also Georgia's ID law.)

What that means is that it will be up to some intrepid Arizona voters to enforce the requirements of the NVRA. In effect, Brewer's nose-thumbing at the EAC is an invitation to a private enforcement lawsuit. Under the NVRA,42 USC 1973gg-9(b), aggrieved persons may bring suit against the responsible state official -- and recover attorney's fees if they prevail. I'd be surprised if some civil rights organization didn't take Secretary Brewer to federal court. - posted by Dan Tokaji @ 8:24 AM