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
Tuesday, March 7
EAC on Arizona Registration Requirements
There's some important news having to do with voter registration. The United States Election Assistance Commission ("EAC") has provided this opinion letter to the Arizona Secretary of State's office, concerning that state's proof-of-citizenship requirements under Proposition 200. In brief, the letter concludes that the state's efforts to require additional proof of citizenship, beyond what is required in the "federal form," contravenes the National Voter Registration Act of 1993 (also known as the NVRA or "Motor Voter"). See here and here for my prior thoughts on other aspects of Proposition 200.

Under the NVRA, states are obliged to use and accept the Federal Mail Voter Registration Form, or "federal form" for short, which may be found here. Authority over the content of this form now lies with the EAC, which was entrusted with this responsibility by the Help America Vote Act ("HAVA").

The problem in Arizona arose because, under Proposition 200, the state sought to impose new and additional registration requirements on voters in federal elections. Specifically, voters were to present either a driver's license number or some other alternative proof of citizenship, such as a birth certificate, passport, certificate of naturalization, or other documents. Notably, Proposition 200 did not change the qualifications for voting, but rather the proof that voters would be obliged to show in order to prove that they satisfy those qualifications and thus to register. This alteration in the manner of conducting registration, the EAC concludes, is preempted by the NVRA, which entrusts the federal government with authority to determine the manner in which registration for federal elections takes place:
The state may not mandate additional registration procedures that condition the acceptance of the Federal Form.... Any Federal Registration Form that has been properly and completely filled-out by a qualified applicant and timely received by an election official must be accepted in full satisfaction of registration requirements.
Note that this speaks only to what may be required in order to register, not to the requirements that a state may impose upon voters at the polls -- such as the presentation of ID -- in order to vote and have their votes counted.

Congress' power to give the federal government authority over the ground rules for conducting registration in federal elections is well-settled law. After the NVRA's enactment, that authority was upheld by conservative panels of the Seventh and Ninth Circuits, as well as other lower courts. (Disclosure: I was one of the attorneys in the Ninth Circuit case.) This is nevertheless an important opinion. It clarifies that, while the states have authority to set qualifications for voting, the manner in which the registration process is conducted must still comply with federal law.

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