Has Kris Kobach Once Again Run Amok On The Shoals Of Preemption? - Part One - Maria Gonzalez v. Arizona

While preparing a blog posting on Kansas' new prove your citizenship please, as you register to vote, otherwise known as HB 2067 the case of Maria Gonzalez v. Arizona reared its lovely head.

This case is interesting because after the three judge panel (which included retired United States Supreme Court Justice Sandra Day O'Connor) the Chief Judge of the Ninth Circuit Court of Appeals issued this order. "Upon the vote of a majority of nonrecused active judges, it is ordered that- this case be reheard en banc pursuant to Circuit Rule 35-3. The three-judge panel opinion shall not be cited as precedent by or to any court of the Ninth Circuit." This is what is known as an en banc order, meaning that the case will be reheard by all active judges of the Ninth Circuit who have not recused themselves.

In terms of appellate advocacy, an en banc opinion carries more weight than the opinion of a three judge panel. Such opinions are less likely to be overturned on appeal by the United States Supreme Court because the possibility of all the judges of the circuit making the same error of law is remote.

My inquiry took me to the national motor voter law better known as the National Voter Registration Act, [NVRA], 42 U.S.C. §1977gg - 3. What then did that three judge panel say about proof of citizenship? The opinion, which is not precedential, was heard by O'Connor, Circuit Judge Sandra Ikuta, and Chief Judge Alex Kozinski. Ikuta wrote the majority opinion and Kozinski wrote a dissent.

The three judge panel also took a hard look at the NVRA and reached opposing conclusions. For his part Chief Judge Kozinski adheres to precedent. The Ninth Circuit has previously held that the NVRA did not preempt States from requiring proof of citizenship. See, Gonzalez I, 485 F.3d at 1048.

Judge Kozinski's dissent focuses on the rules of precedent and how the Ninth Circuit has been resolving differences between three judge panel opinions which differ from en banc opinions. Like making sausage, this is not pretty.

Ikuta's majority opinion provides the history. "The Gonzalez I panel thereafter affirmed the district court’s denial of the preliminary injunction, holding that Proposition 200’s registration requirement was not a poll tax, id. at 1049, and was not a violation of the NVRA, id. at 1050-51. The district court subsequently granted Arizona’s motion for summary judgment, relying on Gonzalez I to rule that Proposition 200 was not an unconstitutional poll tax and was not invalid as conflicting with the NVRA. After trial, the district court resolved all other claims in favor of Arizona, holding that Proposition 200 did not violate § 2 of the Voting Rights Act and did not discriminate against naturalized citizens or burden the fundamental right to vote in violation of the Fourteenth Amendment’s Equal Protection Clause." Emphasis added.

The Elections Clause

Ikuta's analysis first looks at the Elections Clause of the Constitution. "In a nutshell, the Elections Clause gives state governments initial responsibility to regulate the mechanics of national elections, “but only so far as Congress declines to preempt state legislative choices.” Foster v. Love, 522 U.S. 67, 69 (1997)."

The history of the Elections Clause reveals the reasoning behind this unusual delegation of power. Under the Articles of Confederation, the states had full authority to maintain, appoint, or recall congressional delegates. At the Philadelphia Convention, delegates expressed concern that, if left unfettered, states could use this power to frustrate the creation of the national government, most obviously by neglecting to hold federal elections. The Framers decided that Congress should be given the authority to oversee the states’ procedures related to national elections as a safeguard against potential state abuse.

Ikuta writes that a "state’s role in the creation and implementation of federal election procedures under the Elections Clause is to administer the elections through its own procedures until Congress deems otherwise; if and when Congress acts, the states are obligated to conform to and carry out whatever procedures Congress requires."

The Supremacy Clause

Ikuta notes that the Supreme Court has given the federal courts guidance when interpreting the Supremacy Clause. First, in examining claims that a federal law preempts a state statute through the Supremacy Clause, the Supreme Court instructs courts to begin with a presumption against preemption. Second, the Court has adopted a “plain statement rule,” holding that a federal statute preempts a state statute only when it is the “clear and manifest purpose of Congress” to do so.

Ikuta finds that " the Elections Clause, as a standalone preemption provision, establishes its own balance, resolving all conflicts in favor of the federal government." The inquiry into the presumption against preemption does not apply in Election Clauses cases. This is true because the power over elections is delegated to the States and is not a power reserved to them.

Ikuta's approach is to " consider the state and federal laws as if they comprise a single system of federal election procedures." She explains that "[if] the state law complements the congressional procedural scheme, we treat it as if it were adopted by Congress as part of that scheme. ... If Congress addressed the same subject as the state law, we consider whether the federal act has superseded the state act, based on a natural reading of the two laws and viewing the federal act as if it were a subsequent enactment by the same legislature."

Ikuta then takes her analysis into an attempt to harmonize the NVRA with Arizona's Proposition 200. She looks first at Congressional intent. : Congress enacted the NVRA because, among other reasons, it determined that discriminatory and unfair registration laws and procedures can have a direct and damaging effect on voter participation in elections for Federal office and disproportionately harm voter participation by various groups, including racial minorities.” 42 U.S.C. § 1973gg(a)."

Going through the history of Congress' efforts to eliminate discriminatory and unfair voter registration laws Ikuta explains the painfully slow process of litigation before moving on the Voting Rights Act, [VRA]. The VRA accomplished many of the Congressional goals concerning voting, but did not address the problems of voter registration. Citing legislative history she says "the VRA failed to address voter registration procedures, which imposed a “complicated maze of local laws and procedures, in some cases as restrictive as the outlawed practices, through which eligible citizens had to navigate in order to exercise their right to vote,” H.R. Rep. No. 103-9, at 3 (1993)."

Congressional Intent

"Congress found that, while over eighty percent of registered citizens voted in Presidential elections, only sixty percent of eligible voters were registered. H.R. Rep. No. 103-9, at 3. Public opinion polls showed that the primary reason eligible citizens were not voting was the failure to register. Id. While acknowledging that this failure was attributable to many factors outside its control, Congress enacted the NVRA to address the problems within its control, namely those barriers to registration that were imposed by state governments. See id. Under the Elections Clause, Congress had the power “to provide a complete code for congressional elections, not only as to times and places, but in relation to . . . registration.” Smiley v. Holm, 285 U.S. 355, 366 (1932). Through this authority, Congress enacted the NVRA to remove these obstacles and “to provide simplified systems for registering to vote in federal elections.” Young v. Fordice, 520 U.S. 273, 275 (1997),"

Ikuta then connects the Congressional intent with the scheme of practice which the NVRA imposes on the states. That scheme includes not only permitting voter registration at the Departments of Motor Vehicles, but also requiring State Offices which serve the poor and disabled, those who would not necessarily come into contact with the drivers license bureau, to provide voter registration services.

Ikuta goes into detail about the proscribe Federal Form for Voter Registration. Here is the pertinent part of the statute.

The Federal Form:

(1) may require only such identifying information (including the

signature of the applicant) and other information (including data

relating to previous registration by the applicant), as is necessary

to enable the appropriate State election official to assess the eligibility

of the applicant and to administer voter registration and

other parts of the election process;

(2) shall include a statement that—

(A) specifies each eligibility requirement (including citizenship);

(B) contains an attestation that the applicant meets each such

requirement; and

(C) requires the signature of the applicant, under penalty of perjury;

(3) may not include any requirement for notarization or other formal

authentication; and

(4) shall include, in print that is identical to that used in the attestation

portion of the application—

(I) [voter eligibility requirements and penalties for false applications,

§ 1973gg-6(a)(5)]

(ii) a statement that, if an applicant declines to register to vote,

the fact that the applicant has declined to register will remain

confidential and will be used only for voter registration purposes;

and

(iii) a statement that if an applicant does not register to vote, the

office at which the applicant submits a voter registration application

will remain confidential and will be used only for voter registration

purposes.

§ 1973gg-7(b).

Election Clause Analysis: Is Proposition 200’s documentary proof of citizenship requirement is superseded by the NVRA ?

The appellate court considered if the state and federal enactments together as if they composed a single system of federal election procedures. Then the appellate court considered whether consider whether, read naturally, the NVRA provisions complement Proposition 200’s voter registration requirements or supersede them. The holding said that where "a natural interpretation of the language of the two enactments leads to the conclusion that the state law does not function consistently and harmoniously with the overriding federal scheme, then it is replaced by the federal statute."

Ikuta Finds Conflict

"Applying this framework, we conclude that Proposition 200’s documentary proof of citizenship requirement conflicts with the NVRA’s text, structure, and purpose. First, the NVRA addresses precisely the same topic as Proposition 200 in greater specificity, namely, the information that will be required to ensure that an applicant is eligible to vote in federal elections."

"Given the NVRA’s comprehensive regulation of the development of the Federal Form, there is no room for Arizona to impose sua sponte an additional identification requirement as a prerequisite to federal voter registration for registrants using that form. If viewed as a second enactment by the same legislature, the NVRA clearly subsumes Proposition 200’s additional documentary requirement on registrants using the Federal Form."

Congressional Intent Vitiated

"Further supporting this conclusion," Ikuta writes, "the value of the Federal Form (and hence a centerpiece of the NVRA) would be lost, and Congress’s goal to eliminate states’ discriminatory or onerous registration requirements vitiated, if we were to agree with Arizona that states could add any requirements they saw fit to registration for federal elections through the Federal Form."

"Moreover, specific statutory language in the NVRA, when read in an unstrained and natural manner, is inconsistent with the state enactment. The NVRA mandates that states “shall accept and use” the Federal Form when applicants register by mail. § 1973gg-4(a). It likewise requires “acceptance” of the completed Federal Form at state office buildings, which must be transmitted to the appropriate State election officials. § 1973gg-5(a)(4)(iii). The state must implement these methods of registering voters, as well as the combined motor vehicle-voter registration form, § 1973gg-3(c)(1), “notwithstanding any other Federal or state law,” § 1973gg-2(a)."

"Structurally, allowing states to impose their own requirements for federal voter registration on registrants using the Federal Form would nullify the NVRA’s procedure for soliciting state input, and aggrandize the states’ role in direct contravention of the lines of authority prescribed by Section 7. The NVRA permits states to suggest changes to the Federal Form, but gives the EAC ultimate authority to adopt or reject those suggestions. § 1973gg-7(a)."

"Proposition 200 is not in harmony with the intent behind the NVRA, which is to reduce state-imposed obstacles to federal registration. It is indisputable that by requiring documentary proof of citizenship, Proposition 200 creates an additional state hurdle to registration. As indicated in our overview, supra Part C.2, the NVRA was sensitive to the multiple purposes of a federal voter registration scheme, including the need “to establish procedures that [would] increase the number of eligible citizens who register to vote in elections for Federal office” and the need to protect “the integrity of the electoral process.” § 1973gg(b). The balance struck by the EAC pursuant to § 1973gg-7(a) was to require applicants to attest to their citizenship under penalty of perjury, but not to require the presentation of documentary proof."

Stay tuned to the opinion of the Ninth Circuit en banc. Once the judges get past the sausage making I expect they will hammer out an opinion, with a dissent or two. This is the stuff that makes its way to the Supreme Court because the Court takes its role in clarifying the law seriously.