Attorney General Tom Horne will argue to the nation's high court on March 18 that Arizona should be allowed to enforce a 2004 voter-approved law requiring people to provide proof of citizenship to register to vote.
The justices are reviewing a ruling by the 9th U.S. Circuit Court of Appeals that said Arizona cannot refuse to register voters who do not provide proof of citizenship if they instead fill out a special registration form prepared by the federal Election Assistance Commission. That form requires only that the person avows, under oath and penalty of perjury, that he or she is eligible to vote.
A 2004 voter-approved measure requires both proof of citizenship to register and identification to cast a ballot at the polls. Foes challenged both.
The courts sided with the state on the ID at polling places requirement. While that remains a legal issue in some states, opponents of the Arizona law never appealed that decision and it will not be an issue when the U.S. Supreme Court looks at the law in March.
But the appellate court had a different view on the citizenship-proof requirement.
Judge Sandra Ikuta pointed out Congress, through the National Voting Rights Act, mandated creation of a single specific form designed to allow individuals to register to vote by mail. And federal lawmakers empowered the Election Assistance Commission to design the form and decide what is necessary.
That commission, she noted, chose not to include a proof-of-citizenship requirement.
What that means, the judge said, is Arizona election officials cannot refuse to register those people who sign up using that federal form, even if they do not provide the state-mandated identification.
Arizona has remained free, however, to continue to demand proof of citizenship from those who go to state offices and register using a state-provided form.
Both sides agree only a small percentage of people use the federal form.
Horne said the requirement on the federal form to sign, under oath, a statement declaring citizenship is insufficient.
"Someone willing to commit voter fraud will be willing to sign that statement,'' Horne wrote in his legal brief.
"Only by requiring evidence of citizenship can the state screen out noncitizens who are attempting to vote,'' he continued. Horne said that without the proof the state wants "Arizona is forced to accept what amounts to an honor system as to whether applicants are citizens or not.''
But Nina Perales of the Mexican American Legal Defense and Educational Fund, called it "an unconstitutional burden to require voters who are using the federal form to supply more information than is required by the federal government.''
Horne, however, said the Arizona law does not interfere with the federal law "because requiring evidence of citizenship imposes a minimal burden on a limited number of persons and further the federal government's and the states' broad interest in protecting election integrity.''