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Voting law requiring proof of citizenship rejected

Supreme Court rules 7-2 against Arizona measure

The Supreme Court ruled that a federal law trumped an Arizona law requiring various kinds of proof of citizenship.Larry Downing/Reuters

WASHINGTON — Arizona may not require documentary proof of citizenship from people seeking to vote in federal elections in that state, the Supreme Court ruled in a 7-to-2 decision Monday.

Justice Antonin Scalia, writing for the majority in Arizona v. Inter Tribal Council of Arizona, said a federal law requiring states to “accept and use” a federal form displaced an Arizona law requiring various kinds of proof of citizenship.

The federal law, the National Voter Registration Act of 1993, allows voters to register using a federal form that asks, “Are you a citizen of the United States?” Prospective voters must check a box for yes or no, and they must sign the form, swearing under the penalty of perjury that they are citizens.


The state law, by contrast, required prospective voters to prove that they were citizens by providing copies of or information concerning various documents, including birth certificates, passports, naturalization papers, or driver’s licenses, which are available only to people who are in the state lawfully.

The state law was a result of a 2004 voter initiative, Proposition 200, that said it was meant to combat voter fraud.

The law has given rise to tangled proceedings ever since. Under the Voting Rights Act of 1965, Arizona was required to obtain federal approval before it changed its voting procedures. The Justice Department granted approval in 2005.

According to the plaintiffs in the case, tens of thousands of Arizonans have been denied the ability to vote because they failed to present the required evidence.

Much of Scalia’s majority opinion concerned the meaning of the phrase “accept and use.” Arizona officials argued that they do accept and use the form but they also require additional information. An airline may accept and use e-tickets, they said, but also requires identification.

When the case was argued in March, Thomas C. Horne, Arizona’s attorney general, said the federal approach was insufficient to protect the integrity of federal elections in his state.


“It’s essentially an honor system,” he said of the statement required by the federal form. “It does not do the job.”

In the decision Monday, Scalia said the phrase “accept and use,” when understood in context, meant that the federal form had to be accepted as sufficient. Chief Justice John G. Roberts Jr. and Justices Ruth Bader Ginsburg, Stephen G. Breyer, Sonia Sotomayor, and Elena Kagan joined all of the majority opinion, and Justice Anthony M. Kennedy joined most of it.

In a long dissent, Clarence Thomas said the Constitution gave states the power “to determine the qualifications of voters in federal elections, which necessarily includes the related power to determine whether those qualifications are satisfied.”

“Congressional legislation of voter qualifications was not part of the framers’ design,” Thomas wrote.

In a second dissent, Justice Samuel A. Alito Jr. focused on the language of the federal law, which he said was ambiguous. The majority’s interpretation of it, Alito wrote, “produces truly strange results.”

He said he would read the law to mean that states “accept and use” the federal form so long as it is “a meaningful part of the registration process.”

Alito likened his proposed process to the common application used by many colleges and universities. Those institutions, he said, “also require that applicants submit various additional forms and documents.”

But Scalia wrote that Arizona had additional options if it wished to obtain documentary proof of citizenship. It may ask the Election Assistance Commission, a federal body, to make changes to the federal form.


Arizona made such a request in 2005, and the commission split 2-2, effectively rejecting it. The state did not challenge that action in federal court.

The commission recently approved a request from Louisiana to require additional information from its voters, Scalia noted. He said Arizona could ask again.

In dissent, Alito said the majority was giving the state an empty promise.

He pointed out that the commission “currently has no members, and there is no reason to believe that it will be restored to life in the near future.”

In other action Monday, the Supreme Court:

■  Held, 5 to 4, that prosecutors in some instances may use a suspect’s silence at an early stage of a criminal investigation against him, before the suspect has been arrested or informed of his constitutional right to remain silent.

■  Agreed to decide in its next term a new dispute involving race, whether federal housing law requires proof of intentional discrimination.

■  Decided, 5 to 4, that judges may not increase mandatory minimum prison terms when sentencing defendants unless the facts justifying the increase have been found by a jury.

■  Barred lawyers, in another 5-to-4 ruling, from obtaining state driver license records to recruit clients, saying the practice is prohibited by a federal law aimed at shielding motor vehicle information.