AFJ Responds to Supreme Court decision in Arizona "motor voter" case

Alliance for Justice President Nan Aron released the following statement today in response to the Supreme Court decision in Arizona et. al. v. Inter Tribal Council of Arizona, et. al.:

We are pleased that the majority recognizes the will of Congress in providing a simple and efficient means of registering to vote that removes barriers for Americans across the country in reaching the polls.   The majority wisely prohibited Arizona from imposing new burdens on the right to vote that are inconsistent with clear federal law.

Key aspects of this case are discussed, with excerpts from the oral arguments here.

Alliance for Justice is a national association of over 100 organizations, representing a broad array of groups committed to progressive values and the creation of an equitable, just, and free society. Through our justice programs, we lead the progressive community in the fight for a fair judiciary, and through our advocacy programs, we help nonprofits and foundations to realize their advocacy potential.

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.

Voting Arizona: Chaos in the wake of efforts to suppress the vote

Conventional wisdom has it that the re-election of President Obama means efforts to suppress the vote failed.

Try telling that to tens of thousands of voters in Arizona.

You remember Arizona: The state where basic information about when to vote kept getting, literally, lost in translation, with Spanish-language information sometimes misstating the date for the election.

It turns out, that wasn’t the only problem.

As of Saturday 486,405 ballots still had not been counted – this in a state with 3.1 million registered voters. Of that total, 178,785 are “provisional” ballots, often cast by voters who couldn’t meet the strict requirements of Arizona’s Voter ID law. (The remainder are ballots cast through early voting.)

According to The NewYork Times:

Activists say that they believe, based on what they have heard from people in the field, that provisional ballots tended to be used most often in Hispanic and black neighborhoods. … Advocates and elected officials are worried, though, that voters who had to cast conditional provisional ballots because they forgot to bring identification to the polls, as state law requires, may not know they have to present their ID at the county elections office by Wednesday for their vote to count.

The counting of these ballots may determine the outcome of several races. In a race for a new Congressional seat in Phoenix, counting of provisional and early ballots widened the lead of Democrat Kyrsten Sinema to the point that the Associated Press has declared her the winner over Republican Vernon Parker. Democrat Ron Barber, a former aide to Rep. Gabrielle Giffords has retaken the lead in a very close race to keep that seat, which he first won in a special election to succeed Giffords.

And the Times reports there’s a slim chance that even the results of the U.S. Senate election in Arizona might be in doubt:

[A]s of Friday, Jeff Flake, a Republican congressman, was ahead of his Democratic challenger, Richard H. Carmona, by 78,775 votes, according to unofficial results posted by the secretary of state. Mr. Carmona conceded on Tuesday; on Friday, in a message to supporters, he wrote, “We will take every necessary step to make sure all of our supporters’ ballots are counted.”

The U.S. Department of Justice was concerned enough about the mess in Arizona to send in federal observers, something it is empowered to do thanks to the Voting Rights Act of 1965. That, of course, is the civil rights law some say no longer is needed.

The U.S. Supreme Court has just agreed to hear a challenge to a key provision of that law – though this challenge, even if successful, would not affect the right to send in federal observers.

A 21st Century poll tax?

            Being poor gives new meaning to the phrase “time is money.”

            If you’re a wealthy parent and you have an unexpected errand, the nanny will watch the kids.  If you’re poor, it’s leave the kids home alone or don’t run the errand.  If you’re wealthy, you can take a few hours of unpaid leave and it’s no problem.  If you’re poor, it could get you fired.

            But what if the “errand” is voting?

            We all know about the long lines at some polling places on election day – and sometimes well into election night.  But the burden was not spread equally.

            According to a poll for the AFL-CIO by Hart Research Associates, only nine percent of white voters had to wait for more than 30 minutes to vote.  But 22 percent of African American voters had to wait that long.  And the figure rose to 24 percent for Hispanic voters.

            Since African American and Hispanic voters are more likely to be low income voters, the burden of waiting fell heaviest on those least likely to be able to afford it.   So if time is money, are those long lines a form of poll tax?

            The lines were only one example of voter suppression efforts aimed at the poor and minorities. The best known are Voter ID laws.  But there were others, as AFJ’s Isaiah Castilla noted on our Bolder Advocacy blog this week.  And it’s not over yet.  There are questions about whether Latino votes are being properly counted in key races in Arizona.

            It’s widely expected that, during this term, the Supreme Court will hear a challenge to a key provision of one of the most important protections for minority voters – the Voting Rights Act of 1965.  [UPDATE: 4:17PM: The Supreme Court just announced it will, in fact, hear such a challenge].  Opponents of the Act say that nearly 50 years after its passage it’s no longer needed.   But those long lines at the polls, and all the other problems, are important reminders that while all of us are created equal, at the polling station some still are more equal than others.  

The long, long learning curve in Arizona …

           Earlier this month, we posted here about how Maricopa County, Arizona had sent out Spanish-language instructions with its Voter ID cards that wrongly stated the election takes place on Nov. 8.  In fact, as the English-language instructions made clear, it’s Nov. 6.

            But hey, anybody can make one mistake.

            Except now the county has made the same mistake again, and once again it involves only material printed in Spanish. 

            According to The Huffington Post:

a bookmark distributed by the elections department … was passed along to HuffPost on Tuesday by minority advocacy group Campaign for Community Change.  It says, "Register today! Exercise your right to V-O-T-E!" and goes on to list important dates. 

            Once again, the English language bookmarks had the correct date, Nov. 6, while some of the Spanish language bookmarks said Nov. 8.  The story continues:

Yvonne Reed, spokesperson for the Maricopa County Department of Elections, told HuffPost that some of the Spanish-language notices were incorrect because the department used the election date from last year, but that they are no longer being distributed.

… BUT NOTHING IS LOST IN TRANSLATION IN MARYLAND

            While Maricopa County seems to be having an extremely difficult time getting materials out in Spanish to help people vote, a group in Maryland has had no trouble at all producing fliers warning noncitizens that it would be a crime for them to vote.  They warn of possible fines, jail time, and/or deportation – as if the one thing a noncitizen wants to do most is call attention to himself by voting illegally.

            The group is supporting a referendum to prevent implementation of Maryland’s DREAM Act, a law providing in-state tuition to the undocumented immigrant students.  The group  had no problem printing its flier in Spanish – and French, Chinese and Korean.

            Perhaps it’s all a matter of motivation.

By the time you vote in Phoenix – will it be too late?

Still another screw-up in connection with Voter ID – this time in Phoenix, Arizona and surrounding suburbs.  There is nothing wrong with the ID cards themselves.  There is nothing wrong with the English-language instructions.  But some sets of Spanish-language instructions – no one knows how many – say the election is on Nov. 8.  Actually, it’s Nov. 6.

This, of course, comes on top of the blunders in Pennsylvania and Kansas noted previously on this blog.

And speaking of Pennsylvania, it seems the state has come up with an ad campaign with the potential to mislead voters.  According to the HarrisburgPatriot, the state has huge ads on the outside of buses featuring a picture of a state driver's license and, in huge type, the words "SHOW IT"   

In fact, while election workers are free to ask for such ID, thanks to a court ruling, Pennsylvania voters are not required to "show it." Presumably, that's why the ads also say, in notably smaller type, “this Election Day if you have it.”  You'd almost think the State of Pennsylvania wants to confuse voters - or worse.

The Patriot quotes one of the lawyers who sued to block the Pennsylvania voter ID law, Witold Walczak, legal director of the ACLU of Pennsylvania, who noticed that a lot of the "Show it" signs with the great big driver's licenses are on bus shelters in poor neighborhoods where “you have low-income people who don’t have a license because they use mass transit. A cynic might say this is an insidious effort to mislead people. I, of course, am not a cynic.”