Horizon, Host: Ted Simons

October 27, 2010

Host: Ted Simons

Citizenship for Voting

  • An appeals court ruling strikes down Arizona’s requirement for proof of citizenship when voting. Capitol Media Services Howard Fischer explains the ruling.
  • Howard Fischer - Capitol Media Services
Category: Law

View Transcript
Ted Simons:
Good evening and welcome to "Horizon." I'm Ted Simons.
Former Supreme Court justice Sandra day O'Connor is apologizing for her voice waking up tens of thousands of folks in Nevada. O'Connor's voice was used in a robocall that went out to 50,000 Nevada households after midnight, instead of after noon as intended. O'Connor's voice was used in calls supporting a state measure that would limit the role of elections in selecting judges. O'Connor said she did not authorize her voice being used and regrets that it was, but O'Connor defends her involvement in the campaign, despite critics who note that she's still a sitting judge and, thus, should refrain from political activity. Indeed, O'Connor was involved in a ruling yesterday by the ninth circuit Court of Appeals that struck down Arizona's requirement for proof of citizenship when registering to vote. A panel of judges that included O'Connor said that the state requirement is not allowed under federal law. The judges did not overturn a state requirement that voters provide I.D. before casting a ballot. Here to talk more about all of this is Howard Fischer of Capitol Media Services. Good to see you. We've got a three-judge panel.

Howard Fischer:
We've got -- it's not unusual for retired supreme court justices to go and sit in the circuits.

Ted Simons:
The idea this violates what federal law intent is regarding voter rights, correct?

Howard Fischer:
Oh, yes, and this is one of those wonderful areas of law where you say I wish I'd gone to law school. The national voter registration act, the idea behind it, they were concerned that some states were putting through requirements to make it harder for minorities to vote and get them qualified and said, look, we're going to have this uniform standard and more importantly, we want the federal government to create a single registration form. You can require proof of who you are and everything else. But it also said that you cannot require, quote, authentication, and that goes to the issue of citizenship. In other words, you can let the states say do you swear you're a citizen? Yes, you can let the state do that. What the ninth circuit said, you cannot require them to provide proof which is what the 2007 Arizona law said.

Ted Simons:
So they are saying it’s an additional requirement not permitted under the national registration voter act.

Howard Fischer:
Not permitted under the national voter registration act.

Ted Simons:
And the intent was to remove obstacles.

Howard Fischer:
The question is what's an obstacle. Bennett says it's nice, we can ask them to swear. That's like me going to the airport saying I'll sign an oath that I'm not a terrorist and don't have a bomb and therefore, you don't have to put me through the x-ray. He says that makes no sense.

Ted Simons:
Wasn't it looked at a few years ago as well?

Howard Fischer:
It was. After it was first approved, the same group of plaintiffs challenged.

Ted Simons:
Who were the plaintiffs?

Howard Fischer:
The Mexican-American educational fund and the Navajo nation and a few tribes. All said that these laws affect their rights to vote because you got into the issue of, for example, if you need to have a driver's license, either to prove citizenship or I.D. at the polls, you can't get that for free. They said it amounted to a poll tax. They had a series of challenges. When they went to the ninth circuit before and said, look, we want this law enjoined while we litigate it. The ninth circuit said we read the national voter registration act to say, yes, there's a federal standard but read it as allowing states to do anything else they need do to ensure the integrity of elections.
Therefore, we think the state can additionally require citizenship. Judge Ikuta acknowledged the ruling, and said, quote, they got it wrong and, therefore, we think we can overturn that three-judge panel.

Ted Simons:
You refer to the de facto poll tax. The three-judge panel didn't buy that and said that voter I.D. at the poll, when you go to vote, I.D., that's ok as well.

Howard Fischer:
That gets into a whole other set of laws including the voter rights act and brings us back to where we started. Which is voting law in this country is so convoluted because congress set out certain standards. The question is are they minimum standards or limits on what the states can do.

Ted Simons:
They may be convoluted but I think the bottom line is congress put these things in place and states as we seem to have every case, involving Arizona, states are messing around with them.
Howard Fischer:
And that becomes an interesting issue just ahead of Monday's hearing in San Francisco, this is another one of the fights over state eight rights. The ability of states to protect the integrity of their own elections versus the right of the federal government to set standards and decide we have preempted this field. Whether it's immigration in the case of Senate Bill 1070 or the question of voting.

Ted Simons:
Was it a surprise that justice O'Connor saw this the way it T she it.

Howard Fischer:
She was often the swing vote on the high court. Since she simply signed on to the judge's opinion, it's hard to know what was going through her mind. But clearly, she didn't mind they were overruling an earlier ninth circuit decision and clearly believed that the federal national voting registration act does preempt the states from doing something. It's her home state and she has interest in it.

Ted Simons:
What's next?

Howard Fischer:
The state will go ahead and ask the full ninth circuit to review it and obviously, if they refuse to overturn, then it goes to the U.S. Supreme Court, like so many other cases.

Ted Simons:
Howie, good to see you, thanks for joining us.

Howard Fischer:
You're welcome.

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