Ted Simons: Good evening and welcome to "Arizona Horizon." I'm Ted Simons. The U.S. Supreme court today heard oral arguments on Arizona's law that requires proof of citizenship when using a state form for voter registration. The law was approved by voters in 2004, but was quickly challenged by those who say that the law goes beyond a federal voter registration form that requires only a signature to prove citizenship. Here to tell us more about the case is ASU law professor Paul Bender. Good to see you again. Thanks for joining us. Isn't that pretty much what we're talking about here?
Paul Bender: It's a very technical case. It's about the right to vote in some sense but those aren't the issues before the court. Congress passed a law that was meant to make it easy to vote because less than half the people in the country who can vote are registered. You can register by filling out a form and you say I'm a citizen, I'm a resident, I'm of age, and then you sign it. And you sign it and it says under penalty of perjury. So it looks like that's what the federal government wants you to be able to register to be able to register just to do that. The state has a law they should deny registration unless proof of citizenship is presented to the registrar. They give a whole list. The question is does that state law conflict with the federal law and basically, does the federal law mean that you should be able to register by swearing you're a citizen and if the state thinks you're not a citizen, they could challenge you and they would have to prove you're not a citizen but the state's position is in order to register, you have to prove you're a citizen.
Ted Simons: And the state's position is that you need to keep fraud from occurring.
Paul Bender: They can keep fraud from occurring at the polling place by challenging people. It's really a question of who has the burden of proof. If you say I've got this document or that document, you may get caught up in the bureaucracy, even though you're eligible to vote and go away and be discouraged. If the federal form is enough, it's very easy to register and the state would have to pick out the people who they think are ineligible and challenge them and they would have to bring the proof. The issue in the case is whether the applicant for registration has to bring the proof that he's a citizen or whether it's enough for him to say I'm a citizen, I swear to it, and then the burden would be on the state to show he's not a citizen.
Ted Simons: So does that mean there's a little bit more than whether or not Arizona is overreaching its powers here?
Paul Bender: That's the issue. The state under the Constitution, the state can regulate elections, and Congress can override them but only with regard to federal elections. So this statute, the federal statute only applies to federal elections. Normally, it's the same registration for both. So the federal government has overridden the state with the motor voter act and the state says we can still require proof of citizenship and the argument that federal government is making is no, that Congress intended that the applicant should not be forced to bring documentation with him. And there's some interesting legislative history, the judge who joined the majority holding it unconstitutional pointed to, which senator Simpson wanted to put in that statute that you must prove your citizenship and that passed the Senate. The House of Representatives took it out because it didn't want to do that. They did a conference committee and they discussed it and they said we're not going to put that back in, we don't want to make people prove their citizenship. If you pay attention to the legislative history, you would hold the state law preempted.
Ted Simons: We've got that background there, ninth circuit says unconstitutional, go to the Supreme Court. You heard oral arguments today. What did you hear?
Paul Bender: I didn't hear anything because I was in Arizona. If you wait a week, you can read the argument but they do give you the transcript of the argument a couple of hours afterwards. So after I got home from class, I read the transcript. It was a good argument. Everybody did a good job. A lot of really good advocates. I thought tom horn did a really good job, the challenge to somebody who was in the solicitor general's office, she did a really good job. And the deputy solicitor general did a really good job and the issues came out. It was a really interesting argument. It's clear to me from the argument how seven people on the court are going to vote. There's going to be four people who are going to say the state's statute is preempted. There are going to be three people, who will say that it's not preempted. So the question is what are Scalia and Kennedy going to do, if either of them joins the liberals, it will be preempted.
Ted Simons: People would be surprised to think of a possibility.
Paul Bender: If Kennedy joins the liberals, scalia will. Scalia raised the ground and said you've got to use the federal form because that's what it says, otherwise it doesn't mean anything. But if you think that the federal form is wrong and should have a requirement of proof of citizenship, you should raise that with the federal government and horn said we did and we tried to get them to put that in there and did you appeal? And he said no and he said why not and he said I didn't do that, my predecessor did and he said why didn't he appeal and he says who knows. And so that was Scalia’s point, and he agrees that the federal form should require proof of citizenship but he seems to say the way to do that is not to not use the federal form, it's to sue to get the federal form changed.
Ted Simons: And that would side him with the liberals.
Paul Bender: For a different reason. I could see an opinion of four saying it's preempted because the federal form is right and the state has to use it. Scalia saying the federal form is wrong but you have to use it until you get it corrected and the right solution is to go to court and get the federal elections commission to change the federal form.
Ted Simons: Well, I don't want to get too far afield but you mentioned Thomas was among those you were pretty sure was going to vote one way. Do they vote differently very often?
Paul Bender: Not a lot.
Ted Simons: But do you think Thomas might be swayed if Scalia goes another direction?
Paul Bender: No.
Ted Simons: No.
Paul Bender: No, I would be surprised. The issue that Scalia raised is not one that Thomas is very interested in. To me the key vote is always Kennedy. If Kennedy goes with the conservatives, it's hard for me to imagine scalia going the -- being the only conservative to join the four liberals. If Kennedy is willing to vote that the statute is bad, then I think Scalia would go along.
Ted Simons: Kennedy have much to say today?
Paul Bender: Not very much today. He made a couple of comments. The initial comments seemed to say he had a lot of trouble with the state's position, what was the federal form for if not to register? Later on, he said the state has a problem here so maybe we ought to defer to what they want to do. As usual, you can't tell what he's going to do.
Ted Simons: Is this one of those deals where it's going to be a narrow decision? Could this be broad in ways we can't anticipate? What do you think?
Paul Bender: Scalia's view would be very narrow, it would say try to get it changed. What the others want to do is say the federal law is that you have to accept the federal form. And that's a fairly broad decision because that would mean every state has to accept the federal form but they I think would leave open the possibility of you can give me the form, you're done, you've done everything you have to do. I don't think you're a citizen. Then I have to get proof that you're not a citizen and strike you from the roll. That's what it would mean. It wouldn't mean the states didn't have any way of protecting themselves. It would mean they would have to prove it. What the state wants to do is you've got to prove you're a citizen to register to vote and the problem with that is that barrier that a lot of people are not going to spend the time and the money that's necessary to get that proof together and they'll just be discouraged and go away.
Ted Simons: Well, all right. Good to have you here to help us figure out what's going on. We appreciate it.
Paul Bender: Nice to be here.