Ted Simons: Good evening and welcome to "Arizona Horizon," I'm Ted Simons. The United States Supreme Court today upheld a lower court ruling, that found part an Arizona voter registration law is unconstitutional. A high court ruled that the state cannot require proof of citizenship or other added obligations, from those who register to vote using a Federal form. Here now to discuss the ruling is ASU law professor Paul Bender. Always a pleasure.
Paul Bender: Especially at this time of year.
Ted Simons: Yes. And we got you coming up in a couple of weeks, you know, for the big Supreme Court show. What was the issue here?
Paul Bender: The issue here was whether Arizona, and I think that one or two other states, did this, tried to require people when they registered to vote, to have proof that they are citizens, and in the mid 1990s, Congress passed the thing that's called a motor voter act, which was intended to make it as easy as possible to register to vote. And it said that the, to register to vote in Federal elections, that is elections for the house and the Senate, you register to vote by, by filling out forms, and swearing that you are a citizen, and it says under penalty of perjury, I swear that I'm a citizen, and you cannot require any other documentation, that's what the Federal law says. Arizona, however, and I think as I said, one other state, said no, we're not going to let you register unless you provide proof, and it's, it's, it's -- administratively difficult because this form is used to register by mail. And so Arizona saying, if you want to register to vote, send us proof you are a citizen in your mail application so you have to put in the envelope your passport, or something which you don't want to do, maybe, because it may never come back, so it makes it difficult to vote, and the Supreme Court said that it was clear that, that the Federal statute meant to make it as easy as possible for people to register to vote. And that the state could not require proof of citizenship of people that the Federal Government said that if you want to register to vote in the Federal election, it's enough if you swear under the possible penalty of perjury, that you are a citizen. And, and that the state law is inconsistent with that because it made it harder to vote and therefore, it was unconstitutional.
Ted Simons: Did the court focus on the fact that this was burdensome, some would call it or extra stuff, or did they focus on the fact in that, that the Feds say this, you are a state, and you cannot force the Feds to say this.
Paul Bender: Well, what, it's a statutory case, and the Federal statute says that you should be able to register to vote in the Federal election by just swearing that you are a citizen, and the state wants to make you provide more, and they said that that's inconsistent with the Federal law, and therefore, it's preempted, is what the lawyers say, when it's inconsistent, the state can't do it, and it does not say it's unconstitutional, itself, it's that the Federal law wants to make it easier to vote and the state law interferes with that.
Ted Simons: How does this impact the voter registration efforts?
Paul Bender: The case, itself, technically only applies to Federal elections. But, as you know, as everybody knows when you register to vote you register to vote in all elections. So, state could, after this decision, continue to require proof of citizenship to register in state elections, but they cannot require you to register to, to, to the Federal elections, for Congress and for the Senate. And so, in order to avoid this, and continue to, to, to require proof of citizenship, they have to have two registration processes, and maybe two ballots so that would be very, very inconvenient. So, the chances are that this means that the state is going to have to, to forget about that requirement. And, and let people register to vote if they swear that they are citizens.
Ted Simons: Again, did the state legislature go ahead and say, yeah, you can go ahead and register by mail, Federally, but you can only vote in Federal elections, that would be two ballots.
Paul Bender: Yeah. Technically, theoretically, they could do that. I think it would be very, very difficult administratively to do that, so I doubt if they would, and that's not a problem because this is a statute that, that deals with something that, that everybody recognizes, I think, is not problem. And there has been no, no wave of people who are not citizens registering to vote and to vote. For, for a number of reasons, if you are here illegally it, you are going to go and register to vote and call attention, or try to register to call attention to yourself, and when you go to vote, you have to, to produce some kind of identification, and so the combination of those things and other things, as well, means that it's very, very rare, if it ever happens, that somebody is not a citizen registered to vote.
Ted Simons: So other states with similar laws will, will face similar challenges?
Paul Bender: Right, but, I think that there is only one other state. It's important to, to recognize that this is about registration.
Ted Simons: Right.
Paul Bender: To vote, the Supreme Court, a couple of years ago, upheld a statute like Arizona, which requires identification when you vote. So, that's, that's still valid, but, what the court has held invalid is, is this requirement that, that you have to prove affirmatively that, that you are a citizen, in order to register.
Ted Simons: Now, talk to us about the opinion, itself, because it sounds as though the opinion almost prodded Arizona, hey, you know, there is still an option left here for you.
Paul Bender: The opinion says that, that if Arizona still wants to require proof of citizenship to vote in Federal elections, they have a potential way of doing that. They can go to, to the Federal election commission, or a, or the commission and, and ask them to, to -- there are forms for each state because the states have different voting requirements. And, and so, they can ask to have the Federal form for Arizona changed to require proof. The election commission could do that, if it wants to. It does not have to do that. Arizona tried to do that, when it first passed this law, and the Federal election commission split -, about whether they would do it, and so, since it was a tie, they did not do it. And Arizona did not try to get judicial review of that. So Scalia said you could try again, and that opens up the possibility that Arizona would do that. That would be a long, expensive, process for really, for really no practical reason because as I say, there is really no evidence that there are people who are not citizens, who are registering to vote.
Ted Simons: And that particular process, should the election commission once again say no, or wind up in a tie, I guess didn't Justice Scalia say you could take it to court?
Paul Bender: You could and you might win, he said, so, it's speculative along the line and, and the state can decide whether it wants to do that, but, it would be expensive. It would be time consuming. And since there is no problem, really, that, that, to deal with, I wonder why the state would want to do that.
Ted Simons: And judging from that election commission, is there anyone home on that commission right now?
Paul Bender: Right now, there are no full-time appointments because I think that, that the Senate is not confirmed President Barack Obama's commission to the appointment. So that's one of the reasons why, why it is speculative.
Ted Simons: Right.
Paul Bender: Whether this is going to work, and Scalia just says, you could do that, it's an interesting opinion because it kind of offhandedly says might try this, and maybe it will work but don't worry about it, and I think that the reason is that again, there is no problem. If there were big problem of, of thousands of people who are not citizens voting and maybe changing the results of the elections, I think that the court might have different attitude towards this case. But there is no evidence that that is, that has ever happened. So why go to all of this trouble.
Ted Simons: And we have our Supreme Court show coming up, I believe, July 1st. We'll talk about this more and the personality, because I found it interesting Scalia wrote the opinion and Aledo was on the other side.
Paul Bender: And Roberts, the chief Justice, and Scalia joined with the liberals to do, to do this result.
Ted Simons: So that's a fascinating dynamic. We'll talk more about that and see you July 1st, good to see you now.
Paul Bender: Nice to see you, too.