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Justices appear divided over Arizona's voter law

By Bill Mears, CNN Supreme Court Producer
updated 3:48 PM EDT, Mon March 18, 2013
Arizona Attorney General Thomas Horne talks with reporters outside the U.S. Supreme Court on Tuesday.
Arizona Attorney General Thomas Horne talks with reporters outside the U.S. Supreme Court on Tuesday.
  • Spirited Supreme Court oral argument over voter law, a classic federalism issue
  • Case looks at whether states can add to federal voter registration law
  • The Obama administration opposes Arizona statute

Washington (CNN) -- Legal challenges to state voter regulations are still drawing political and judicial scrutiny four months after the November election.

This was evident in a divisive oral argument on Monday at the Supreme Court over whether states can enhance a federal voter registration law with their own requirements.

The justices appeared at odds over Arizona's voter-approved Proposition 200 and its insistence on proof of citizenship before registering.

The state calls it a "sensible precaution" to prevent voter fraud. Civil rights groups counter that it adds an unconstitutional and burdensome layer of paperwork for tens of thousands of citizens.

"If I see the purpose of the [federal law] is to simplify registration, how is Arizona's provision consistent with that objective and purpose," said Justice Sonia Sotomayor, given "that many people don't have the documents that Arizona requires?"

But Justice Antonin Scalia spoke for several of his conservative colleagues, asking, "What is -- in the words of the [federal] statute -- 'necessary to enable' for the appropriate state election official to assess the eligibility of the applicant? It's clear that the statute intends the states to be able to do that."

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The appeal is a classic federalism issue on the often delicate line between conflict and cooperation between state and federal governments over enforcing voting procedures.

The current fight has produced a range of states, lawmakers, and advocacy groups on both sides of the issue. The Obama administration opposes the law.

Retired justice Sandra Day O'Connor, an Arizona native, was among those attending the hour-long arguments.

Justice Anthony Kennedy last June blocked the Arizona law from being enforced, while the high court decided internally whether to accept pending appeals for review. The ballot measure was passed in 2004 and has been lingering in the federal courts ever since.

The Constitution says the that state legislatures should determine the "times, places, and manners of holding elections for senators and representatives," but Congress has the power to "make or alter such arrangements."

Federal lawmakers did just that in approving the National Voter Registration Act in 1993, which has since been called the "Motor Voter" law.

It was meant to streamline election participation. It requires states to have any application for a driver's license treated also as a voter registration -- the "motor voter." The law also requires states to "accept and use" mail-in and in-person applications.

A federal Election Assistance Commission was created to produce an nationally uniform voter application form, which states must use. Any extra state instructions -- or "add-ons" must be approved by the commission.

The question was whether extra instructions are permitted and just how the federal form must be respected in the first place.

Arizona Attorney General Thomas Horne told the court during Monday's arguments that prohibiting a state from effectively enforcing the citizenship requirement is "so far-reaching that if Congress had intended that, it would have put the prohibition in the statute expressly, which it did not do."

Horne said that inaction by Congress "should not disable states from taking sensible precautions to exclude noncitizens from voting."

That brought quick skepticism from the three female justices, including Sotomayor, who questioned the state's rejection of thousands of mail-in registrations.

"Each state must accept and use the federal form -- period, and not add something to it," Justice Ruth Bader Ginsburg said.

The moderate-conservative Kennedy may prove the deciding vote.

He asked a few questions of both sides, but made it a point to echo the views of Proposition 200 opponents.

The mail-in "postcard is presumptive evidence of registration and of qualification," he said. "And if you have evidence to the contrary, then it's different. But otherwise, the whole utility of the single [federal] form is missing-- is gone."

Scalia echoed the state's contention the federal form is too simple, relying on an "honor system" from the registrant.

Those would-be voters just have to mail in a postcard, checking off a box attesting they are a U.S. citizen, then signing the form under penalty of perjury.

The state said it had prosecuted cases of non-citizens registering to vote.

Patricia Millett, arguing for a coalition of voters claiming disenfranchisement, told the court the federal law was a "safe harbor" in the face of different, intrusive state laws.

But Kennedy suggested otherwise.

"The state has a very strong and vital interest in the integrity of its elections, even when those -- and perhaps especially when those -- are elections of federal officials," he said. "And it seems to me" the federal appeals court ruling against Arizona last year "did not give sufficient weight to that interest."

Among those bringing suit is Jesus Gonzalez, a public school employee in Yuma who tried to register to vote the day he became a citizen.

His application was twice rejected when his separate naturalization and driver's license numbers were improperly "red-flagged" by state databases that initially indicated he was a non-citizen.

Nina Perales, Gonzales' attorney from the Mexican American Legal Defense and Educational Fund, told CNN that about 31,000 potential voters had their applications rejected in the two years after the Arizona law took effect.

She said 90 percent of those were born in the United States and that only 20 percent were Hispanic.

In her brief with the high court, Perales said voter-registration drives at county fairs, church services and similar venues have fallen off since many potential voters don't bring the necessary citizenship documents -- like a birth certificate -- to these community events.

One estimate found a 45 percent reduction in Maricopa County, the state's largest and seat of the capital, Phoenix.

The Obama administration said if Arizona law was allowed to continue, it would create a mishmash of regulations.

"Each state could impose all manner of its own supplemental requirements beyond the federal form," aid Solicitor General Donald Verrilli Jr. "Those requirements could encompass voluminous documentary or informational demands, and could extend to any eligibility criteria beyond citizenship, such as age, residency, mental competence, or felony history."

But Proposition 200 supporters say the state needs to power to keep illegal immigrants and those ineligible to vote in the United States from getting a ballot.

"I believe we must go out of our way to protect the integrity of America's elections, to avoid the fraud we see regularly in other nations, and which if not checked will rise up here in the United States," said Russell Pearce, a former state senate president, who helped spearhead Prop 200's passage.

The case is Arizona v. Inter Tribal Council of Arizona (12-71). A ruling is expected in three months.

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