Justice Anthony Kennedy last week stayed a Ninth Circuit Court of Appeals ruling that new electoral registration requirements in Arizona are prohibited under federal law. Voters in Arizona, a laboratory for anti-immigrant policies, passed Proposition 200 in 2004, requiring voters to offer proof of citizenship. Opponents immediately identified the proposal as anti-immigrant and a threat to Latino civil rights.
On Wednesday, supporters of Proposition 200 asked Justice Kennedy to stop the Ninth Circuit ruling from coming into effect, at least until the end of this election year (Justice Kennedy is tasked with handling emergency motions from the Ninth Circuit). The Supreme Court has addressed the measure before, allowing it to remain in place through the 2006 midterm elections. But the Court did so without deciding whether or not the requirement was barred by the 1993 Voting Rights Act (VRA). Now that the Ninth Circuit has declared the measure void under the VRA, Justice Kennedy is requesting additional briefs on the matter. The Court may soon have an opportunity to clarify the legality of Arizona’s voting registration requirements. Such a decision would necessarily impact voters in states like Florida, Virginia, and Texas, all of which have passed similar voter ID laws.
Voter ID laws targeted at minority communities have been top policy priorities for certain state legislatures since 2011. Florida Governor Rick Scott is pushing a voter purge, claiming it is necessary to remove non-citizens from voter lists. Although Scott claims that state officials are unlikely to purge legitimate voters, the governor himself was forced to cast a provisional ballot in 2006 when Florida officials mistakenly thought he was deceased. In Wisconsin, where a recent voter ID law has not yet taken effect, many voters were nonetheless required to produce identification during the recent gubernatorial recall election.
The D.C. Circuit Court of Appeals recently upheld the constitutionality of a key provision of the Voting Rights Act, based on the documented efforts to disenfranchise and intimidate minority voters in many places across the country. Because that case, Shelby County v. Holder, squarely addresses the constitutionality of the VRA, the Supreme Court is likely to hear an appeal from the D.C. Circuit’s decision during its 2012-13 term.
In the meantime, given the expedited briefing schedule set by Justice Kennedy, the Court’s review of the Ninth Circuit ruling on Arizona’s voter ID provision could affect voting in the current election cycle in Arizona, and potentially in other jurisdictions with similar voter ID provisions.
While we await word from the Court, it is worth remembering that, as Florida ACLU Executive Director Howard Simon pointed out, there are more shark attacks in Florida than cases of voter fraud.