Judge: Election Commission must follow voters' will in citizenship requirement

PHOENIX -- A federal judge today ordered the Election Assistance Commission to require would-be Arizona voters to provide proof of citizenship when they register to vote.

Judge Eric Melgren ruled that Alice Miller, the commission's acting director, acted illegally in refusing to amend its own voter registration forms to comply with a 2004 voter-approved Arizona law linking citizenship proof to voting. He said Miller cannot substitute her own judgment of what is necessary to prove citizenship to what the state, through its voters have decided.

Today's ruling is a setback for the Mexican American Legal Defense and Educational Fund which had argued the Arizona requirement undermines voter-registration drives. Unless overturned, it could complicate the ability to register new voters who may not be carrying the kind of proof Arizona requires.

That 2004 measure requires both proof of citizenship to register and identification when casting a ballot.

Legal efforts to kill the latter requirement faltered early in the process and the provision remains on the books.

And Arizona has been entitled since that vote to require documented proof of citizenship for those who use its own state-designed for to register.

This fight surrounds the fact that Congress empowered the Election Assistance Commission to design a national voter-registration form. And that form requires no proof of citizenship but only that those registering swear, under penalty of perjury, that they are eligible to vote.

Last year the U.S. Supreme Court rejected Arizona's attempt to enforce the proof-of-citizenship requirement on those using the federal form.

The court, however, did leave the option of petition the commission for a change. But Miller, acting alone because all commission posts are vacant, refused, leading to the lawsuit by both Arizona and Kansas which has a similar law.

Miller, in her January order, said Arizona showed no need for additional documents.

"Arizona's evidence at most suggests that 196 of 2,706,223 registered voters, approximately 0.007 percent, were unlawfully registered noncitizens around the time that Proposition 200 took effect,' she wrote. And Miller said allowing Arizona to require proof of citizenship at time of registration "would thwart organized voter registration programs' because people do not always carry around documents that Arizona considers acceptable proof of citizenship.

She said that runs afoul of what Congress wanted in mandating a federal form to "facilitate voter registration drives.'

But Melgren, in his a 28-page ruling, said all that is legally irrelevant.

"The Arizona and Kansas legislatures have decided that a mere oath is not sufficient to effectuate their citizenship requirements and that concrete proof of citizenship is required to register to vote,' he wrote. And he said the U.S. Constitution gives states "exclusive authority' to set voter qualifications.

What that means, Melgren wrote, is that the commission must bow to each state's determination "that a mere oath' is insufficient to determine someone is qualified to vote.

How that ruling might affect Arizona voter registration if not overturned is unclear.

Arizona law does allow a driver's license issued after 1996 to be used as proof.

But MALDEF attorney Nina Perales quoted Debra Lopez, who has been involved with Latino Vote Project, who said that those who do not have a license will be required to produce something else proving citizenship. And that, Perales said, would require Lopez to bring a copy machine to registration events.

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