The U.S. Supreme Court will consider how far Arizona -- and other states -- can go in requiring voters to prove citizenship when registering.
In a brief order, the justices agreed to review a ruling by the 9th U.S. Circuit Court of Appeals which said Arizona cannot refuse to register voters who do not provide proof of citizenship if they 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.
In its June ruling, the appellate court said Arizona's proof-of-citizenship requirement, approved by voters in 2004, directly conflicts with federal law.
The state is asking the nation's high court to overturn that ruling.
"Although the applicant is required to sign a statement under oath that he is a citizen, someone willing to commit voter fraud will be willing to sign that statement,'' Attorney General Tom Horne wrote in his petition to the high court. "Only by requiring evidence of citizenship can the state screen out noncitizens who are attempting to vote.''
And he complained because the Obama administration has so far sided with the challengers.
"Not only are they unwilling to guard our border but they want illegals to vote,'' he said.
But Nina Perales of the Mexican American Legal Defense and Educational Fund, said there is no evidence that anyone who is not a citizen has ever used the federal form to register. She also said the appellate court got it right.
"It is an unconstitutional burden to require voters who are using the federal form to supply more information than is required by the federal government,'' Perales said.
The justices are planning to hear arguments in February.
At the heart of the fight is that 2004 voter-approved measure which 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 portion. While that remains a legal issue in some states, foes of the Arizona law never appealed that decision and it will not be an issue when the Supreme Court looks at the law next year.
But the 9th Circuit concluding that the Arizona's citizenship-proof requirements to register cannot override federal law.
Judge Sandra Ikuta pointed out that 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 that only a small percentage of people use the federal form.
Maricopa County Elections Director Karen Osborne said she has registered fewer than 3,000 people using the federal form since the 9th Circuit required her office to accept it without separate proof of citizenship. By comparison, there are close to 2 million people registered in the county.
Horne, in his bid to convince the Supreme Court to uphold the state law, is arguing that nothing in the 2004 ballot measure conflicts with the National Voting Rights Act.
He said that law has the goal of establishing procedures to increase the number of eligible citizens who register to vote in elections for federal offices. The key word there, he said, is "eligible.''
"Because only U.S. citizens are eligible to vote, Proposition 200's evidence-of-citizenship requirement is consistent with the NVRA's express goals,'' Horne is arguing to the high court. "Congress did not intend the NVRA to bar states from properly assessing whether an applicant who registers to vote is eligible to vote.''
And Horne 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.''
That argument held no water when Horne made them earlier this year, in person, to the 9th Circuit.
"On its face the NVRA does not give states room to add their own requirements to the federal (voter registration) form,'' Ikuta wrote in the court's June ruling.
Anyway, she said, even if the federal law permits a proof-of-citizenship requirement -- something the court was not conceding -- Congress left that up to the federal Election Assistance Commission which was empowered to design the form. And the commission, Ikuta noted, did not think such a requirement was necessary.
Horne, in renewing those arguments to the Supreme Court, is telling the justices they need to overturn that ruling.
"Without the Arizona provision that was stricken by the 9th Circuit, Arizona is forced to accept what amounts to an honors system as to whether applicants are citizens or not,'' he wrote.
Perales rejected that contention.
"There is no evidence that any voter has ever used the federal form to register as a non-citizen,'' she said.
Horne, however, said the record shows that non-citizens already have, in fact, registered to vote in Arizona.
"People were caught because they sword they were not citizens when they got jury forms'' to appear for duty. He said county recorders, then using those juror forms, went back and checked and found that not only were some of these people registered but that some had actually voted.
Horne said this probably occurred because people used fake IDs. And anyone who first registered prior to 2004 had no citizenship-proof requirement.
He argued that upholding the 9th Circuit ruling will just make things worse.
"Now everybody who's not a citizen who wants to register to vote will ask for the federal form,'' Horne said.