Justices appear divided on Arizona voting law

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WASHINGTON -- Supreme Court justices seemed split Monday over whether a federal law intended to streamline voter-registration procedures means that states may not attach additional requirements, such as proof of citizenship.

The federal registration form that Congress says states must "accept and use" requires only that the applicant swear under oath that he or she is a citizen. But Arizona voters in 2004 passed a requirement that applicants provide additional proof beyond that statement. The 9th U.S. Circuit Court of Appeals ruled against the state, saying Arizona could not add requirements to the federal form.

The state-by-state battle over who is eligible to vote, what kind of identification or proof may be required, and even the hours of voting prompted a host of legal battles leading up to the 2012 elections. In general, Republicans proposed new restrictions as necessary to combat voter fraud, while Democrats said such moves would harm minorities and the poor, who often do not have easy access to the required credentials.

The oral arguments Monday hardly reflected those incendiary partisan battles; there was an extended discussion about whether "may require only" really means "shall require only."

Still, a ruling in Arizona's favor could open the door for states to add requirements to the federal registration form, and the issue seemed to split the court along familiar ideological lines.

Arizona's Republican Attorney General Thomas Horne told the court that the National Voter Registration Act required development of the federal form that applicants may mail in to register to vote, but the law was not meant to limit what states can require. He said Congress did not specifically tell states not to demand citizenship proof. "Congressional silence should not disable states from taking sensible precautions to exclude noncitizens from voting," he said.

Mr. Horne immediately ran into trouble from liberal Justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan.

Justice Ginsburg said Congress was not silent about citizenship. It had decided that a sworn statement subject to perjury charges was sufficient, she said. "So it's not as though the federal form didn't relate to citizenship. It did," Justice Ginsburg said. "And it said this is the way we deal with citizenship. Then Arizona adds something else."

Justice Anthony Kennedy, who might be in a pivotal position given the divided reactions of his colleagues, asked Mr. Horne if Arizona could add other requirements. When Mr. Horne said yes, if they were consistent with the objectives of the act, Justice Kennedy said it then seemed to him that the federal form "is not worth very much."

On the other hand, Justice Kennedy also said the appeals court had used a test that "ignores the proposition that the state has a very strong and vital interest in the integrity of its elections, even when those -- and perhaps especially when those -- are elections of federal officials."

Patricia Millett, representing groups challenging the law, said Congress' intent was to reform a system where "40 percent of eligible voters were not registered, because state procedures and burdens were standing as an obstacle."

"Enclosing your driver's license number is that immense barrier, right?" Justice Antonin Scalia asked sarcastically, referring to one way applicants could satisfy Arizona's required proof-of-citizenship. He said it should be "no problemo" for the state to require what the federal form lacks.



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