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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, June 20
The Arizona NVRA Decision
Judge Roslyn Silver of the U.S. District Court for the District of Arizona issued this opinion and order yesterday, denying plaintiffs' motion for a temporary restraining order in Gonzalez v. State of Arizona. The case challenges Arizona's refusal to register voters who complete the so-called "federal form," prescribed by the National Voter Registration Act (NVRA) for mail registration, unless they provide proof of citizenship with that form. Arizona has taken this action pursuant to Proposition 200, which imposes new proof-of-citizenship requirements on those seeking to register and vote. I've previously discussed this issue here.

My initial impression is that the court's interpretation of the NVRA is incorrect. In particular, I don't think the court's reasoning squarely confronts the strongest argument against what Arizona seeks to do under Proposition 200. The NVRA requires all states to "accept and use" the federal mail registration form, developed by the Election Assistance Commission (EAC). 42 U.S.C. 1973gg-4(a). (It used to be the Federal Election Commission, but the Help America Vote Act of 2002 (HAVA) transferred this responsibility to the EAC.)

There's no question that a state has the authority to develop and use its own form, within certain boundaries set by the NVRA. 42 U.S.C. 1973gg-4(b). But even if a state chooses to do so, it must still "accept and use" the federal form. The Arizona dispute, to my mind, really involves the meaning of the term "accept and use." In particular, the dispute hinges on whether "accept and use" means states must register voters who properly complete the federal form for mail registration -- or, alternatively, whether the state is allowed to demand additional information as a condition of registration.

In concluding that a state may condition registration on additional proof of eligibility not required by the federal form, the district court relies on another section of the NVRA, 42 U.S.C. 1973gg-7. Subsection (a) of that provision says that the EAC should develop the federal form, in consultation with states' chief election officers. Subsection (b) sets forth what the federal form is supposed to include, including an attestation that the voter meets eligibility requirements and a signature line under penalty of perjury.

It's at this point that, I think, the court's reasoning goes astray. The court interprets subsection (b) to allow the federal form to include other requests for information, in addition to what's specified in the statute. Let's assume that's so. Even if the court is right on this point, it's immaterial to this case, which isn't about what the federal form may or should include. It's instead about whether, given what the federal form does in fact say, a state may demand additional proof of eligibility on top of what the form calls for. Subsection (b) doesn't speak to that question.

If Arizona thinks that the federal form ought to be amended to allow it to demand proof of citizenship, that's a matter for it to take up with the EAC in the first instance, through the consultation process described in subsection (a). It would then be up to the EAC to determine whether the form should be amended to accommodate Arizona's concern, in light of 42 U.S.C. 1973gg-7 and any other relevant provisions of the NVRA. What Arizona's apparently attempted to do is to make an end-run around the consultation between the EAC and state election officials required by statute. In this respect, the court's order appears to bump up against the EAC's regulatory authority.

The court's reliance on subsection (b) of 42 U.S.C. 1973gg-7 is thus, in my view, a distraction from the real issue: whether the "accept and use" language allows states to demand additional information, beyond what the federal form requires. The court declines to look at legislative history, believing that the statute is clear in allowing the state to demand such additional information. I don't think that's so. If it were, then it would be easy for states to make an end-run around NVRA. They could, for example, refuse to accept the federal form unless registrants completed elaborate supplemental forms mandated by the state, or supplied proof of eligibility not possessed by many applicants (such as government-issued photo ID). Moreover, had the court examined the legislative history of the NVRA, it would have found that Congress actually rejected an amendment that would have permitted states to require "documentation relating to citizenship" of would-be registrants.

Perhaps I've missed something, but I don't see that the district court squarely addresses the clearest argument against Arizona's action. Bear in mind that I've not seen the briefs, so don't know exactly what was argued to the court. But the court's rationale for finding the statute unambiguous -- and therefore for avoiding the legislative history -- rests on a subsection of the NVRA that isn't, to my mind, germane to the question at hand.

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Moritz College of Law The Ohio State University