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Election Law Blog cites an "very important" 9th Cir. en banc ruling regarding a voter id law with special emphasis on the citizenship issue, particularly since it "contains a major statement of what plaintiffs would need to show if they
want to prove that a voter identification law violates section 2 of the
Voting Rights Act." An earlier summary of the litigation:
In this case Plaintiffs, registered voters in Arizona and voters' rights groups, challenged Proposition 200, a law that imposed new restrictions on voter registration and voting. Among these restrictions was the requirement that registrants provide proof of citizenship; the six forms of identification valid to prove citizenship are: (1) a state issued driver's license; (2) a U.S. birth certificate; (3) a U.S. passport; (4) a U.S. naturalization document; (5) another immigration document that proves citizenship; or, (6) a Bureau of Indian Affairs card number. When voting at the polls, voters must provide identification with their name, address and photograph, or two forms of identification with their name and address. Voter mail registration applications, prescribed by the U.S. Elections Assistance Commission, are no longer provided.
Plaintiffs claimed that the State of Arizona did not obtain preclearance to stop using the prescribed voter mail registration applications. Plaintiffs also alleged that the voter identification requirements disparately impact Latinos as Latinos are less likely to possess the forms of identification required to register to vote and cast a ballot. Finally, Plaintiffs asserted that the enforcement of these new voter identification requirements diverts funds from programs that would encourage voter turnout. Accordingly, Plaintiffs sought a Preliminary Injunction preventing the enforcement of these voter identification requirements.
The opinion notes a usual trend here -- absentee voting does not have such a requirement, using a signature check; it is unclear to me how this could not be done for in person voting, especially since it seems a lot easier to do (putting aside the lack of a real problem of fraud) it the other way. For various reasons, many do not want to use absentee voting (sometimes, it is not an option for everyone; unclear if this is so here), but IF it was an option for everyone, that would temper the problem. The ruling held that for federal elections, federal law (statutory) required simpler rules, but it was okay for state elections.
One problem, as noted in a brief, is the cost. This is not a trivial matter for some people -- the costs offered ranged from $10 to $100 to even $380. The specific id for voting might be free, but what is necessary to obtain such id is not. And, when faced with this issue, some do logically think of this as a type of "poll tax," which violates the Twenty-Fourth Amendment (federal elections) and the Fourteenth Amendment (illicit classification) while some see some hints to an illicit racial classification as well (Fifteenth Amendment). Federal law addresses the last concern, the problem a matter of proof and how much care we determine matters. The other two are related and had logical force (imho) but has not been too successful in court.
Both sides relied on a ruling (Crawford) a few years back that split the Supreme Court in about three ways. Stevens wrote the plurality for three that basically held that the "facial" challenge to a voter id law must fail because there wasn't enough evidence that voters as a whole were burdened and (even though nothing much was there) the state had enough of an interest to have the law to validate it. Would more evidence change the equation? Who knows, really? The opinion in a footnote:
For most voters who need them [the id documents], the inconvenience of making a trip to the BMV, gathering the required documents, and posing for a photograph surely does not qualify as a substantial burden on the right to vote, or even represent a significant increase over the usual burdens of voting.
Hint, whenever a word like "surely" is used in cases of this nature, be on your guard. Particularly, when three justices dissented and argued that, yeah, there was such a burden of a fundamental right. The opinion helped the voter id movement out by providing a sheen of respectability and noting that we shouldn't let the partisan nature of the law bother us (in another context, partisan or incumbent motivations have been used by Scalia to disparate campaign finance litigation; here, he rejected the limited nature of the controlling opinion). Some believe Stevens was being strategic here, getting as narrow a ruling as he could, others took him at face value, perhaps given his Chicago background or whatever. Hard to tell, but either way, the dissents have the stronger case, and the matter begs for some in depth district court fact-finding.
The Crawford plurality if nothing else suggested the 1960s state poll tax case set up a too restrictive rule for burdens on voting, supporting a more balancing approach. The panel here held that a voting id law "is not a fee imposed on voters as a prerequisite for voting" so it is not a "poll tax" and it is not "a burden imposed on voters who refuse to pay a poll tax" so does not meet the requirements of the state poll tax case. The case, though apparently we should not read it too broadly, held "affluence of the voter or payment of any fee an electoral standard" is an illicit voting requirement. It seems a bit of sophistry to consider id laws merely a neutral voting requirement when in effect payment of a fee is required and "wealth" in this area (like getting lawyer for a felony) is not a licit barrier without some heightened need. There is no such need here.
Crawford did hold that "evenhanded restrictions that protect the integrity and reliability of the electoral process itself" are legitimate and (as here) rejected a facial challenge, though leaving open (as here) as applied challenges that have better evidence. Also, as noted by the Election Law Blog, the federal statute being used here is stricter than is the case in some cases (e.g., the South Carolina law the Obama Administration opposes) where the burden of proof is on the state. The expert at that blog is against voter id laws as a whole, since the "evil" being targeted is at best small while the means uses at best is an unnecessary threat (even if small) against a fundamental right done in a a partisan way.
Overall, the restrictions are not really "evenhanded" in practice and their need (or even usefulness) toward "integrity and reliability" is unclear. After all, somehow, the feds can provide an easier path to voting as do quite a few states, a majority actually, this id regime quite recent. Throughout our history, in practice, what is "evenhanded" is a complex matter (see here, as to religious "neutrality") , particularly in the field of voting rights. Identification is useful to have, though only johnny come lately in this respect for voting, but the proper path to take is to provide it for free if the alternative is in effect a class based voting requirement.
Well, it is only the 9th Circuit, and there is this big specter by some that the USSC might find the whole Voting Rights Act illicit because it isn't properly congruent or proportional or something. So, "to be continued."