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Monday, March 18, 2013

The OTHER voting rights case reaches the Supreme Court

The legal issues are different; the stakes are similar

The first thing Jesus Gonzalez did after completing the naturalization ceremony that made him an American citizen in 2005 was to try to exercise the most fundamental right of citizenship: the right to vote.

He filled out a voter registration form correctly. He provided the number for his certificate of naturalization. He signed an oath, under penalty of perjury, that he was a citizen. In short, he did everything the United States requires to register to vote in federal elections.

But Mr. Gonzalez had just become a citizen in Arizona, a state that keeps trying to put up barriers to poor people and people of color when they try to vote. In 2012, the state became notorious for its voter suppression efforts. But those efforts actually began long before this past election.

In 2004, Arizona passed a referendum which added burdensome state requirements beyond the simple guidelines in federal law. So the state turned Gonzalez down. He tried again, this time using his driver’s license number. But the state said the license was too old, and turned him down again. Finally, Mr. Gonzalez paid what amounts to a de facto poll tax: $112.95 to get a passport, in order to provide proof of citizenship.

He is not alone. Since the Arizona law took effect, more than 30,000 people had their voter registration forms rejected, without any evidence that the applicants were illegitimate. Today, they get their day in court.

At issue is the National Voter Registration Act, a law passed 20 years ago to provide a standardized, simple way for Americans to register to vote in federal elections. The law provides for a form prospective voters can fill out and mail to state boards of elections. States are required to "accept and use" the form. The law also requires the form be made easily available in many offices, including Departments of Motor Vehicles. That's how the law became known as the "motor voter" law.

The law was challenged by groups ranging from the Arizona Hispanic Community Forum to Common Cause and the League of Women Voters. Jesus Gonzalez is one of the plaintiffs in the suit, State of Arizona et. al., v. The Inter Tribal Council of Arizona, Inc., et. al.

A three-judge panel of the 9th Circuit Court of Appeals threw out the law. They said the federal law takes precedence and states have no right to add their own requirements. One of the judges was retired Supreme Court Justice Sandra Day O’Connor. (Retired Supreme Court justices sometimes hear cases in lower federal courts.) The full 9th Circuit meeting en banc – that is, with all of the judges hearing the case – affirmed that decision.

When it passed "motor voter," Congress made clear it had no interest in the kind of stunt Arizona is trying to pull. Congress specifically rejected an amendment to allow states to do what Arizona now is doing anyway - requiring people to submit documents proving their citizenship, documents that often are difficult for poor people, the elderly, new citizens, and active-duty military to provide. If Arizona wins in the Supreme Court, it could encourage other states to throw up similar roadblocks.

As always when a state seeks to suppress the rights of poor people and people of color to vote, the effort is cloaked in the mantle of curbing "voter fraud." But this kind of fraud – in which people who have no right to vote show up at the polls and vote anyway – is nearly nonexistent. And there is no evidence that the form provided under the motor voter law ever has been used to register fraudulently.

Perhaps most important, the Constitution is absolutely clear about where authority lies. It says Congress has the right to determine the "times places and manner" of federal elections.

In another case involving voting, Justice Scalia made headlines last month, suggesting that Section 5 of the Voting Rights Act, which he called a "racial entitlement," should be overturned because he could read the minds of members of Congress when they reauthorized the law by nearly unanimous votes – and he didn't like what he imagined those members of Congress were thinking. Here, Congress clearly rejected a proposal to allow states to pass additional requirements that would surpass the basic guidelines of the NVRA.

So upholding the 9th Circuit and striking down the Arizona law should be an easy call.

"We should all have a right to vote in this country," says Jesus Gonzalez. "I want to have a voice in the United States."

Soon we'll know if the Supreme Court will do its duty and allow American citizens their right to "a voice in the United States" or if the majority will help Arizona try to silence that voice.

Hear NPR's story about the case.

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