Voter Registration

To: 

Ken Bennett
Arizona Secretary of State

Question Presented

In light of the recent decision in Arizona v. Inter Tribal Council of Arizona, Inc.,_ U.S._, 133 S. Ct. 2247 (2013), you have asked the following questions regarding the implementation of the evidence-of-citizenship requirements contained within Proposition 200:

1. Approximately ten percent of applicants who use the Federal Form do not provide sufficient information to enable the county recorders to determine citizenship. Does Arizona law permit those applicants to vote in state and local elections?
2. If the answer to question number 1 is no, does Arizona law authorize the issuance of "federal election only" ballots to those applicants?
3. If the answer to question number 1 is no, are those individuals qualified to sign candidate, initiative, referendum, and recall petitions for state and local matters?

Summary Answer

1. No. Registrants who used the Federal Form and did not provide sufficient evidence of citizenship are not eligible to vote for state and local races. For state and local matters, registration is contingent on each applicant's providing evidence of citizenship.
2. Yes. Arizona law authorizes the issuance of ballots containing only the federal races to the registrants described in the previous question.
3. No. Under Arizona law, only registered voters are qualified to sign candidate, initiative, referendum, and recall petitions.

Background

Since statehood, the State of Arizona has conditioned the right to vote on citizenship:

No person shall be entitled to vote at any general election, or for any office that now is, or hereafter may be, elective by the people, or upon any question which may be submitted to a vote of the people, unless such person be a citizen of the United States of the age of eighteen years or over, and shall have resided in the state for the period of time preceding such election as prescribed by law, provided that qualifications for voters at a general election for the purpose of electing presidential electors shall be prescribed by law. The word "citizen" shall include persons of the male and female sex.

Ariz. Const. art. VII, § 2(A). The Arizona Constitution further provides that "[t]here shall be enacted registration and other laws to secure the purity of elections and guard against abuses of the elective franchise." Ariz. Const. art. VII, § 12. The Legislature was and is authorized to enact all necessary laws to effectuate the Constitution's provisions. Ariz. Const. att. XX,§ 21.

The Legislature enacted numerous statutes that govern voter qualifications and the voter-registration process. Every resident of the State is qualified to register to vote if he or she is a citizen of the United States and meets other requirements. A.R.S. § 16-101(A). No elector shall vote in an election unless the elector has been registered to vote in the particular election district for which the election is being conducted. A.R.S. § 16-120. A qualified elector is defined as someone who has been properly registered to vote and who is at least eighteen years of age on or before the election date. A.R.S. § 16-121. Registration is a prerequisite to voting. A.R.S. § 16-122.

In 1993, Congress passed the National Voter Registration Act ("NVRA"), which requires each State to permit prospective voters to register to vote in elections for federal office by any of three methods: simultaneously with a driver's license application, in person, or by mail. 42 U.S.C. § 1973gg-2(a). The Election Assistance Commission ("EAC") administers the NVRA. The NVRA's primary stated purpose is to "establish procedures that will increase the number of eligible citizens who register to vote in elections for federal office." 42 U.S.C. § 1973gg(b)(l).

Under the NVRA, the federal mail registration form (the "Federal Form") includes a statement that specifies each eligibility requirement, including citizenship, contains an attestation that the applicant meets each such requirement, and requires the applicant's signature under penalty of perjury. 42 U.S.C. § 1973gg-7(b)(2). The EAC is required to work in consultation with the chief election officers of the States to develop the Federal Form, and the form is to include state-specific instructions. 42 U.S.C. § 1973gg-7(a).

In 2004, Arizona voters passed Proposition 200, a citizens' initiative that was designed in part "to combat voter fraud by requiring voters to present proof of citizenship when they register to vote and to present identification when they vote on election day." Purcell v. Gonzalez, 549 U.S. 1, 2 (2006). One of Proposition 200's provisions, codified as A.R.S. § 16-152(A)(22), requires county recorders to reject voter registration forms that are not accompanied by sufficient evidence of citizenship. Another provision of Proposition 200, codified as A.R.S. § 16-166(F), sets forth the following acceptable methods or documents to prove citizenship:

1. The number of the applicant's driver license or nonoperating identification license, if issued after October 1, 1996.
2. A photocopy of the applicant's birth certificate.
3. A photocopy of pertinent pages of the applicant's United States passport.
4. A presentation to the county recorder of the applicant's naturalization documents or the number of the certificate of naturalization.
5. Other documents or methods of proof that are established pursuant to the immigration reform and control act of 1986.
6. The applicant's Bureau of Indian Affairs card number, tribal treaty card number or tribal enrollment number.

Once a registrant submits sufficient evidence of citizenship, the registrant need not do so again unless he or she changes his or her residence to a different county. A.R.S. § 16-166(G). You and former Secretary of State Jan Brewer have both asked the EAC to include information regarding Proposition 200 in the state-specific instructions for the Federal Form, but have not received EAC's approval. EAC issued a prompt denial, which is now being appealed in court.

In 2006, two groups of plaintiffs filed suit against the State of Arizona1 seeking to enjoin the Proposition 200's voting provisions. After years of litigation, the United States Supreme Court issued its Opinion in Arizona v. Inter Tribal Council of Arizona, Inc. (hereinafter "Inter Tribal Council"), _U.S. _, 133 S. Ct. 2247 (2013) on June 17, 2013. The Court held that Arizona must accept and use the Federal Form to register voters for elections for federal office. Id. at 2259-60. The Court held that the NVRA "precludes Arizona from requiring a Federal Form applicant to submit information beyond that required by the form itself." Id. at 2260. In that decision, the United States Supreme Court noted that determining qualifications for voters in federal elections is a state, not a federal function. The Court stated that "Arizona is correct that it would raise serious constitutional doubts if a federal statute precluded a state from obtaining the information necessary to enforce its voter qualifications." ld. at 2259-60.

The Supreme Court stated that Arizona could apply to the Elections Assistance Commission for a state-specific requirement that potential registrants, using the federal as well as the state form, furnish evidence of citizenship, and if the EAC did not grant the state's specific requirements, to pursue the constitutional issues in court. Arizona, as instructed by the U.S. Supreme Court, is now in court pursuing those constitutional issues.

In the meantime, although the Court did not specifically address whether a Federal Form applicant could vote in state or local elections, the Court noted that state-developed voter registration forms could be used "in both state and federal elections" and that the Federal Form guarantees that a simple means of registering to vote in federal elections will be available. Id. at 2255 (emphasis added).

The Ninth Circuit Court of Appeals, in its preceding decisions, noted that the NVRA did not preclude Arizona from enforcing its evidence-of-citizenship requirement in state election registrations. Gonzalez v. Arizona, 677 F.3d 383, 404 n.30 (9th Cir. 2012); Gonzalez v. State of Arizona, 624 F.3d 1162, 1191 n.20 (9th Cir. 2010).

After the Supreme Court issued its mandate, the District Court for the District of Arizona entered its final judgment in the Gonzalez matter, stating the following:

For each voter registration applicant who submits a Federal Form that meets the requirement of the Federal Form, but does not contain information required by A.R.S. § 16-166(F), Defendants shall create a record for a successful registration of that individual and promptly notify that registrant of his or her eligibility to vote in elections for Federal office.

Gonzalez v. Arizona, Case No. CV06-1268-PHX-ROS (Dkt. 1123) (D. Ariz. Sept. 11, 2013) (emphasis supplied).

Analysis

A. To implement the provisions of Proposition 200 and the NVRA, Arizona's election officials must establish two distinct voter registration rolls.

Because Arizona law requires a registration applicant to provide evidence of citizenship, registrants who have not provided sufficient evidence of citizenship should not be permitted to vote in state and local elections unless such a dual registration system is invalid under the federal or state constitution. The courts that have examined dual registration systems have not specifically addressed an evidence-of-citizenship requirement.⁽²⁾ Instead, the courts have disapproved dual registration systems for reasons distinguishable from the situation presented here.

1. The U.S. Supreme Court has not foreclosed the possibility of a constitutionally acceptable dual registration system.

In Young v. Fordice, 520 U.S. 273 (1997), the Supreme Court analyzed Mississippi's conversion to a dual registration system after the NVRA' s enactment. Mississippi, a covered jurisdiction subject to the Voting Rights Act's preclearance requirements,⁽³⁾ submitted a plan referred to as the "Provisional Plan," as opposed the "Old System" in place before the NVRA's effective date. Id. at 277. The Department of Justice precleared the Provisional Plan. Id. at 279. Between January I, 1995, and February 10, 1995, the Mississippi election officials registered 4,000 new voters under the Provisional Plan. Id. at 278. Thereafter, the state attorney general concluded that the Provisional Plan registrations did not meet state requirements and state officials were then asked to notify those 4,000 registrants that they were not registered to vote in state or local elections. Id. On February l 0, 1995, Mississippi began using what was called the "New System" to register people for federal elections and went back to the Old System for registration for state elections. Id. The State did not seek preclearance of the change from the Provisional Plan to the hybrid Old System/New System plan. Id. at 280.

The question presented to the Supreme Court was whether Mississippi's changes required preclearance, not whether dual registration that differentiates between registration for state and federal elections violated any constitutional provisions. Id. at 275. With respect to the propriety of a dual registration system, the Court stated as follows:

Finally, Mississippi argues that the NVRA, because it specifically applies only to registration for federal elections, 42 U.S.C. § l973gg-2(a), automatically authorizes it to maintain separate voting procedures; hence § 5 cannot be used to force it to implement the NVRA for all elections. If Mississippi means that the NVRA does not forbid two systems and that § 5 of the VRA does not categorically-without more-forbid a State to maintain a dual system, we agree .... The question here is "preclearance .... "

Id. at 290-91 (emphasis in original).

In Shelby County, Alabama v. Holder,_ U.S._, 133 S. Ct. 2612, 2631 (2013), the Supreme Court struck down the Voting Rights Act's coverage formula. Consequently, Arizona is no longer subject to the preclearance requirement of the Voting Rights Act's Section 5. The Supreme Court has not addressed another dual registration scenario since Young. Justice Alito noted in his dissent in Inter Tribal Council that it would be "burdensome for a State to maintain separate federal and state registration processes with separate federal and state voter rolls." 133 S. Ct. at 2272. Nevertheless, the Supreme Court has not prohibited a State from doing so.

2. If adopted, Arizona's dual registration system will not be based on an unconstitutional distinction.

In Haskins v. Davis, 253 F. Supp. 642 (E.D. Va. 1966), the court considered Virginia's enactment of a dual registration system in response to the Twenty-Fourth Amendment's prohibition against poll taxes as a qualification for voting in a federal election.⁽⁴⁾ The court noted that Virginia's poll tax on state and local elections had been held to violate the Equal Protection Clause shortly before the court considered the Haskins matter. Id. at 642-43 (citing Harper v. Va. State Bd. of Elections, 383 U.S. 663 (1966)).⁽⁵⁾ Because the basis of the dual registration system was an unconstitutional distinction, the Haskins court held that the dual registration system violated the Equal Protection Clause. Id. at 643 ("No rational basis exists for distinction between persons registered to vote only in federal elections and those registered to vote in all elections.").

Here, unlike in Haskins, there is a legitimate reason for the distinction between state and federal registration systems. The NVRA requires Arizona election officials to accept and use the Federal Form to register voters for federal elections and thereby preempts Proposition 200 with respect to federal elections. But the NVRA does not apply to state and local elections. See, e.g., 42 U.S.C. § 1973gg-2(a) ("[I]n addition to any other method of voter registration provided for under State law, each State shall establish procedures to register to vote in elections for Federal office .... ") (emphasis supplied). As the courts repeatedly held in the Gonzalez cases, requiring registrants to provide evidence of citizenship does not violate their constitutional rights.

First, the Ninth Circuit Court of Appeals held that Proposition 200 is not a poll tax even though some Arizonans may be required to spend money to obtain the necessary documents. Gonzalez v. Arizona, 485 F.3d 1041, 1048 (9th Cir. 2007). This case therefore differs from Haskins on that basis alone.

Second, in denying the Plaintiffs' request for a permanent injunction, the district court made numerous significant findings of fact and conclusions of law. The district court held that the plaintiffs had failed to demonstrate that Proposition 200's evidence-of-citizenship requirement excessively burdened their right to vote. Gonzalez v. Arizona, Case No. CV06-1268-PHX-ROS (Dkt. 1041 at 29-34) (D. Ariz. Aug. 20, 2008). The court also held that the State had demonstrated important regulatory interests and actual instances of previous voter fraud. Id. at 34-35. The court concluded that "Proposition 200 enhances the accuracy of Arizona's voter rolls and ensures that the rights of lawful voters are not debased by unlawfully cast ballots," and held that as a result, Proposition 200 did not violate the Equal Protection Clause as an undue burden on the fundamental right to vote. Id. at 35. The district court further held that Proposition 200's registration provisions did not violate the Equal Protection Clause with respect to naturalized citizens, did not violate Section 2 of the Voting Rights Act, did not violate the plaintiffs' First Amendment speech and associational rights, and did not violate Title VI of the Civil Rights Act of 1964. Id. at 35-49.

Unlike the fees invalidated in Haskins, Proposition 200 has been upheld as serving a legitimate purpose and only minimally burdening voters. Proposition 200 must be implemented because it does not violate the Equal Protection Clause under the undisturbed district court and Ninth Circuit Gonzalez holdings.

3. The Arizona Constitution does not preclude a dual registration system.

In Orr v. Edgar, 670 N.E.2d 1243 (Ill. App. 1996), the Appellate Court of Illinois considered whether the State's dual registration system violated the Illinois Constitution. Id. at 1245. The Illinois Constitution provides that "[a]ll elections shall be free and equal." Ill. Const. art. III, § 3. The Orr court stated that this provision "guarantees the right to vote in Illinois and reflects a broad public policy to expand the opportunity to vote." Id. at 1252. The court concluded that the clause prohibited the State's creation of a "confusing system of dual and separate electorates for state and federal elections."

Arizona's Constitution contains a similar provision, but for the reasons set forth below, we believe that Arizona courts would not apply the provision the same way that the Orr court did. Article II, § 21 provides as follows: "All elections shall be free and equal, and no power, civil or military, shall at any time interfere to prevent the free exercise of the right of suffrage." Ariz. Const. art. II, § 21.

Arizona adopted this provision based on the Washington State Constitution.⁽⁶⁾ John D. Leshy, The Arizona State Constitution: A Reference Guide 37 (1993). Leshy noted that the meaning of this provision is unclear:

This provision underscores the importance of open and free elections and is effectively implemented by the more specific provisions found in Article VII. What is meant by "equal" elections is unclear. Perhaps it is a more terse form of the prohibition of discrimination in voting on account of race, color, or previous condition of servitude contained in section 7 of Article XX; or perhaps it incorporates a notion of equally weighted individual votes, as in a "one person/one vote" formula.

Id. at 66.

Arizona courts rarely cite, much less interpret, this provision. In Chavez v. Brewer, 222 Ariz. 309, 214 P.3d 397 (App. 2009), the Arizona Court of Appeals addressed a claim by various electors against then Secretary of State Jan Brewer and the election officials in the fifteen counties that the voting machines certified for use did not satisfy Arizona's statutory requirements for accuracy and disability access. Id. at 313, ¶ 8, 214 P.3d at 401. Among other theories, the plaintiffs alleged that the machines violated Article 2, Section 21 because they are not accessible to individuals with disabilities in a manner that provides them the same opportunity for access and participation, including privacy and independence, as nondisabled voters. Id. at 319, ¶ 30,214 P.3d at 407. They further argued that "requir[ing] some voters to vote on such a flawed and insecure system while others vote on a safer, more accurate system would result in a drastically unequal election." Id.

The Arizona Court of Appeals noted that no previous Arizona cases interpreted the constitutional provision and looked to other States with similar provisions:

Other states with similar constitutional provisions have generally interpreted a "free and equal" election as one in which the voter is not prevented from casting a ballot by intimidation or threat of violence, or any other influence that would deter the voter from exercising free will, and in which each vote is given the same weight as every other ballot.

Id. at 319, ¶ 33, 214 P.3d at 407. The Court then concluded that "Arizona's constitutional right to a 'free and equal' election is implicated when votes are not properly counted" and that the appellants might therefore be entitled to relief if they could demonstrate that a significant number of votes would not be counted. Id. at 320, ¶ 34, 214 P.3d at 408.

Shortly after the Court of Appeals issued Chavez, the Ninth Circuit adjudicated a case in which multiple felons challenged Arizona's disenfranchisement scheme under various provisions of the United States and Arizona Constitutions. Harvey v. Brewer, 605 F.3d 1067 (9th Cir. 2010). The court rejected the plaintiffs' argument that requiring them to pay off their criminal fines and restitution orders violated the Free and Equal Elections Clause, stating that "the best reading of the [provision] is that it does not apply to disenfranchised felons, but only to those who are otherwise qualified to vote." Id. at 1081.

These two cases demonstrate that the Free and Equal Elections Clause requires equality for all people who are qualified to vote in a particular election. Proposition 200 requires evidence of citizenship to be a qualified elector for state and local elections. A.R.S. § 16-166(F). Persons who have not provided that evidence are not qualified to vote in the state and local elections. The Free and Equal Elections Clause does not provide such individuals with a cause of action.

Other legal arguments against dual registration systems that parties have raised in other jurisdictions would be inapplicable. Neither the United States Constitution nor the Arizona Constitution forbids dual registration. The only way to give effect to Proposition 200's evidence-of-citizenship requirement is to establish separate voter rolls-one for those who have taken the additional step of providing evidence of citizenship, and another for those who have not. The NVRA requires applicants using the Federal Form to be registered to vote in elections for federal office, but it does not require them to be registered to vote in elections for state and local offices.

B. Arizona elections statutes do not preclude a separate ballot containing federal offices only.

Arizona's election statutes contain many provisions regarding the specific requirements for ballots, including their design, printing, handling, and tabulation. The Legislature has defined the word "ballot" as follows:

[I]n its relation to a voting machine, means that portion of the cardboard, paper or other material within the ballot frames containing the name of the candidate, party designation or a statement of a proposed constitutional amendment, or other question, proposition or measure with the word "yes" for voting in favor of any proposed constitutional amendment, question, proposition or measure, or the word "no" for voting against any thereof.

A.R.S. § 16-422(A)(I). It also is defined as "a paper ballot on which votes are recorded, or alternatively may mean ballot cards and ballot labels." A.R.S. § 16-444. The Legislature has not defined the term "ballot" in a way that requires a combined single ballot for all federal, state, and local elections for candidates and ballot measures.

When the Legislature enacted laws pertaining to ballots for primary elections, it included requirements such as different color designations for political parties, the use of columns, the use of instructions to guide voters regarding how many candidates can be selected for each office, and whether the candidates should be listed in alphabetical order, or rotated, etc. A.R.S. §§ 16-462 to -468. The Legislature provided comparably specific requirements for general election ballots. A.R.S. §§ 16-501 to -507. None of these statutes provide that a single ballot must contain federal, state, and local offices together. And although A.R.S. § 16-502 provides the specific order for listing candidates and ballot measures for a general election ballot, it does not mandate that there can be only one form of ballot.

Although the Legislature has not expressly authorized separate ballots, there is no existing statutory barrier to having one form of ballot containing only federal offices and a second form containing the federal, state, and local offices and ballot measures.

C. Persons who have registered using the Federal Form without providing evidence of citizenship are not qualified electors for purposes of signing petitions for state and local matters.

Under Arizona law, only registered voters are qualified electors eligible to sign candidate, initiative, referendum, and recall petitions. As set forth above, for state and local matters, registration is contingent on each applicant's providing evidence of citizenship. All of the relevant constitutional provisions and statutes concerning the collection of petition signatures require the signers to be qualified electors. Ariz. Const. art. 4, pt. I, § I (7) (qualified electors required to sign a petition for initiative or referendum); Ariz. Canst. at1. VIII, § 1 (recall of public officers); A.R.S. § 16-314 (candidate nomination petitions); A.R.S. § 19-101 (referendum petitions); A.R.S. § 19-102 (initiative petitions); A.R.S. § 19-115(A) (requiring signers of initiative or referendum petitions to be "legally entitled to vote upon" the proposed measure); A.R.S. § 19-201 (recall petitions).

The Arizona Supreme Court has held that registration is a prerequisite to being a qualified elector for the purposes of signing petitions. First, in Ahrens v. Kerby, 44 Ariz. 337, 37 P.2d 375 (1934), the court considered the qualification for signatures on an initiative petition. The court examined all of the Arizona constitutional provisions that mentioned the words "elector" or "qualified elector" and concluded that it was clear that both refer "not to persons who merely have the qualifications entitling them to register, but to those who have registered and by doing so placed themselves in a position to discharge the duty to the state that possession of these qualifications imposes." Id. at 345, 37 P.2d at 378. The court then looked at the statutory language concerning qualifications of signers for an initiative or referendum petition and noted that the Legislature must have felt that every person who had not registered to vote should be denied the right to sign a petition for a ballot measure, and that the registration requirement was in harmony "with the very nature of democratic government itself, because under it the individual is sovereign and exercises his power through the ballot." Id. at 346, 37 P.2d at 379. The court held that it was therefore reasonable to presume that unregistered electors were ineligible to "set in motion the machinery of the law by which measures upon which they themselves could not vote might be brought before those who could." Id.

The Court reiterated this point in Whitman v. Moore, stating "[i]t is, of course, absolutely necessary that every petitioner shall be a qualified elector who is entitled to vote" for or against the measure. 59 Ariz. 211, 223, 125 P.2d 445, 452 (1942). There, the Court affirmed the trial court's findings that signatures by petitioners who were not registered in the correct county or precinct were properly stricken. Id. at 227-28, 125 P.2d at 453-54.

The general rule applicable to all types of petitions is that a person who is qualified to vote for the candidate or ballot measure at issue is qualified to sign the petition to help get that candidate or ballot measure on the ballot in the first place. As set forth above, to be a qualified elector for state and local elections, a person must comply with the evidence-of-citizenship requirement established by Proposition 200. Persons who use the Federal Form to register but do not provide evidence of citizenship cannot, as a matter of law, be qualified electors for the purposes of signing state or local candidate, initiative, referendum, or recall petitions.

Conclusion

Proposition 200 being upheld as a legitimate means of improving the accuracy of Arizona's voter rolls and preventing voter fraud. Those registering only with the federal form, which does not include evidence of citizenship, should not vote in state elections or sign petitions. Persons seeking to register to vote must comply with Proposition 200's evidence-of-citizenship requirement in order to become a qualified elector eligible to vote in state and local elections and to sign candidate, initiative, referendum, or recall petitions. Persons using the Federal Form to register without providing evidence of citizenship are registered and qualified electors for federal offices. Arizona law does not preclude using one form of ballots for federal offices only and another form for all state offices and measures.

Thomas C. Horne
Attorney General

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Footnotes

1. The plaintiffs also named election officials from Arizona's fifteen counties as defendants. For brevity, this Opinion refers to all of the defendants collectively as the State.
2. In addition to the cases discussed below in subsections A. I through A.3, a district court in Mississippi examined the State's dual registration system, which required voters to register separately for county and municipal elections. Miss. State Chapter, Operation Push v. Allain, 674 F. Supp. 1245 (N.D. Miss. 1987). Because the case involved allegations of purposeful racial discrimination with significant findings of disparate impact after a full trial and did not involve separate state and federal voter-registration rolls, it is distinguishable from the current scenario. In that case, the court concluded that the Mississippi dual registration system violated Section 2 of the Voting Rights Act. Id. at 1268.
3. See Atty. Gen. Op. 113-008 (2013) for a more detailed discussion of the Voting Rights Act's preclearance requirement and its application to Arizona.
4. The Twenty-Fom1h Amendment to the U.S. Constitution, which was ratified on January 23, 1964, provides as follows:

   The right of citizens of the United States to vote in any primary or other election for President of Vice President, for electors for President or Vice President, or for Senator or Representative in Congress, shall not be denied or abridged by the United States or any State by reason of failure to pay any poll tax or other tax.

5. The Harper Court addressed Virginia's argument that it could exact fees from citizens for many different kinds of licenses and that voting was no different:

   But we must remember that the interest of the State, when it comes to voting, is limited to the power to fix qualifications. Wealth, like race, creed, or color, is not germane to one's ability to participate intelligently in the electoral process. . . . To introduce wealth or payment of a fee as a measure of a voter's qualifications is to introduce a capricious or irrelevant factor.

   Harper, 383 U.S. at 668.

6. Washington's provision is identical to Arizona's version. Wash. Const. art. I, § 19.