Jesus Gonzalez v. State of Arizona

Recorder; County Ortega, Dixie Gila failures, respect- I must of such the wake County Mundy, Election Di Gila fully dissent. County rector; Nelson, Brad Pima Osborne, Director; Karen Election County Director; Maricopa Election Pearson, County Greenlee Yvonne Director; Penny Pew, Election Director; County Apache Election County Purcell, Maricopa Re Helen GONZALEZ; Luciano Valen M. Maria Rodriguez, corder; Pima F. Ann Ari cia; Tribal Council of The Inter Recorder, Bennett, County Defen Ken Advocacy Net zona, Inc.; Arizona dants-Appellees. Gallardo; League of

work; M. Steve Gonzalez; Abeytia; Bernie Maria M. Ari Latin American Citizens United Community Forum; Hispanic Arizona zona; League of Women Voters Causa; Friendly Por La Chicanos Arizona; People the American Gonzalez; House; Debbie Lo- Jesus Tribe, Way Foundation; Hopi Plain Registration pez; Voter Southwest tiffs, Project; Valencia; Education Luciano Sol; People Ameri- Del for the Valle Foundation; Project Way Vote, can Hispanic Abeytia; Com Arizona Bernie Plaintiffs, Forum; munity Por La Chicanos Friendly House; Causa; Gonza Jesus lez; Lopez; Voter Debbie Southwest Arizona, Inter Tribal Council of Project;

Registration Valle Education Network; Inc.; Advocacy Arizona Vote, Plaintiffs-Ap Sol; Project Del Gallardo; League of M. United Steve pellants, Arizona; Latin American Citizens v. Arizona; League of Women Voters of Baker, ARIZONA; Shelly La State Tribe, Plaintiffs-Appellants, Hopi Recorder; Manuz, County Berta Paz v. Recorder; County Candace Greenlee Bennett; Arizona; Shelly Recorder; County Ken Owens, State Coconino County Recorder; County Baker, Ber- Constable, Yavapai La Paz Lynn Recorder; Manuz, County Director; Kelly Dastrup, ta Greenlee Na Election County Owens, Re- Director; County Candace Coconino vajo Election Laura Hansen, corder; Patty County Recorder; Coconino Dean-Lytle, Pinal Kelly Director; County County Dickerson, Election Judy Elec Graham Navajo County Hale, Dastrup, Election Di- Director; La Paz tion Donna rector; Lynn Constable, Yavapai County Director; Susan Election Director; County County Laura Marlar, Election Hightower Yuma Re County Recorder; County Dean-Lytle, Hoyos, Pinal corder; Pinal Gilberto Dickerson, County Justman, Judy Elec- Director; Graham Election Laurette Hale, Director; La Paz Recorder; Patty Donna Navajo County tion Han Director; County Election Susan County Di sen, Election Coconino County Marlar, Re- Rhodes, Hightower Yuma rector; Cochise Christine County Hoyos, corder; Pinal Haught County Recorder; Gilberto Linda Director; Justman, Election Laurette

Navajo County Recorder; Christine

Rhodes, County Recorder; Cochise Haught Ortega, County

Linda Gila

Recorder; Mundy, County Dixie Gila Director; Nelson,

Election Brad Pima

County Director; Election Karen Os

borne, County Maricopa Election Di

rector; Pearson, Yvonne Greenlee

County Director; Penny Election

Pew, Apache County Di Election

rector; Purcell, Maricopa Helen

County Recorder; Rodriguez, F. Ann County Recorder,

Pima Defendants-

Appellees. 08-17094,

Nos. 08-17115.

United States Appeals, Court of

Ninth Circuit.

Argued and Submitted June 2011. April

Filed TX,

Fund, Antonio, plaintiffs-ap- San for Gonzalez, al. pellants Jesus et Greenbaum, Esq. (argued), Jon M. Rob- Kengle, Lawyers’ A. ert Committee for Law, Rights Washington, Civil Under D.C., Bodney, Esq., Steptoe David J. & Johnson, LLP, Phoenix, AZ, David B. Rosenbaum, Hudson, Esq., Thomas L. Phoenix, Maledon, P.A., AZ, Esq., Osborn Sparks, Esq., Sparks P. Joe Law Firm, Scottsdale, AZ, Kohrman, Daniel B. AARP, D.C., Esq., Washington, plain- tiffs-appellants The Inter Tribal Council of Arizona, et al. DOJ, R. Bagenstos (argued),

Samuel D.C., Washington, for amicus curiae Unit- ed States.

Thomas Horne (argued), Attorney C. General, Phoenix, AZ, Mary O’Grady, So- General, Phoenix, AZ, licitor for defen- dant-appellee Ken Bennett. KOZINSKI, ALEX Before: Chief PREGERSON, Judge, HARRY PAMELA RYMER, GRABER, ANN SUSAN P. BERZON, MARSHA S. JOHNNIE B. RAWLINSON, CLIFTON, RICHARD R. BYBEE, IKUTA, JAY S. SANDRA S. N. SMITH, and H. RANDY MARY MURGUIA, Judges.1 Circuit IKUTA; by Opinion Judge Concurrence Perales, KOZINSKI; Esq. (argued), Judge Mexican Chief Concurrence Nina BERZON; Legal by Judge Partial American Defense and Educational Concurrence joining any Judge Rymer participated argument opinion. in oral away passed and deliberations but before 388 below, by Judge Proposition registration provi- 200’s

and Partial Dissent PREGERSON; registration Arizona’s voter Partial Concurrence and sion amended procedures require County Record- by Judge RAWLINSON. Partial Dissent “reject any application registra-

er to OPINION accompanied by tion that is not satisfacto- ry citizenship.” evidence United States IKUTA, Judge: Circuit 16-166(F). § Proposition Ariz.Rev.Stat. requires prospective Proposition Ari- polling place provision 200’s amended proof in Arizona to of U.S. provide voters day procedures require zona’s election vote, register see citizenship order present specified voters to forms of identi- 16-166(F) (the “registra- § Ariz.Rev.Stat. 16-579(A). § polls. fication at the See id. provision”), requires registered tion Shortly Proposition after passage, 200’s voters to show identification to cast a bal- plaintiffs against number of filed lawsuits § polls, lot at the see 16- Ariz.Rev.Stat. enjoin changes. Arizona2 to these Two 579(A) (the place provision”). “polling groups plaintiffs are relevant to this questions whether appeal This raises (Gonzalez) appeal: plaintiffs the Gonzalez § Proposition Voting violates of the and the Inter Tribal of Arizona Council (VRA), 42 Rights Act of 1965 U.S.C. (ITCA).3 plaintiffs § is unconstitutional under the Four- Twenty-fourth teenth or Amendments to The district court consolidated the vari- Constitution, or is void as inconsistent complaints. ous After the district court Registration with the Voter Act National plaintiffs’ prelimi- denied the motion for a (NVRA), §§ 42 1973gg of 1993 U.S.C. et injunction, nary ap- Gonzalez and ITCA seq. uphold Proposition require- We 200’s (Gonza- pealed. See v. Arizona Gonzalez that ment voters show identification at the (9th Cir.2007). I), 1041, lez 485 F.3d 1046 place, that polling but conclude the NVRA briefing the ap- Because schedule for the supersedes Proposition registration 200’s election, peal beyond extended the 2006 provision provision applied as that Gonzalez and moved for an ITCA emer- applicants using the National Mail Voter (which gency interlocutory injunction (the Form”) Registration Form “Federal prevent implementation Prop- would the of register to vote in federal elections. 200 pending disposition osition the of the appeal of the district denial a court’s of

I preliminary injunction), which granted. we 2, 2004, On November Arizona voters Arizona petitioned See id. After for cer- initiative, 200, tiorari, passed Proposition a state Supreme the Court vacated the Governor) (upon proclamation emergency injunction which of the and remanded the enacted various revisions to the state’s case to this court for determination of explained appeal. election laws. As in more detail the of merits the See Purcell v. collectively represented group plaintiffs, 2. We refer to the defendants another of which "Arizona,” though county Tribe, even re- Arizona Hopi Representative included the Steve corders were also named as individual defen- Gallardo the Arizona State of from House dants. Representatives, League the of Women Voters Arizona, League of the of United Latin Ameri- represented group 3. Jesus Gonzalez one of Network, Citizens, Advocacy can the Arizona plaintiffs, which consisted of individual Ari- People Way and the For American Founda- organizational plaintiffs. zona residents and tion. Arizona, The Inter Tribal of a non- Council tribes, profit organization twenty Arizona

389 ,S.Ct. Gonzalez, 1, 5-6, poll 166 did not constitute a tax 549 U.S. under the curiam). (2006) (per Fourteenth Amendment. L.Ed.2d remand, pursued and On Gonzalez ITCA appealed Gonzalez and ITCA injunctive preliminary claim for relief their rulings district court’s on the NVRA and reg- 200’s respect Proposition with Twenty-fourth Amendment claims. In ad I, requirement. Gonzalez istration dition, challenged ITCA the court’s deter I panel F.3d at 1048. The Gonzalez Proposition mination that 200 was not a the district court’s denial of the affirmed Amendment, poll tax under the Fourteenth injunction, holding Propo- that preliminary challenged and Gonzalez the court’s deter provision was not registration sition 200’s Voting Rights minations on the Act and poll tax and was not an unconstitutional Equal Protection Clause claims. A three- by the See id. at superseded NVRA. judge panel part affirmed in and reversed 1050-51. part, holding that Proposition poll 200’s ing place provision did not violate the remand, VRA the district court held that

On or Twenty-fourth Fourteenth and Proposition polling place provision 200’s Amendments, Proposition but Twenty-fourth 200’s poll was not a tax under the registration provision was' registration provision superseded by Amendment its (Gonzalez NVRA, v. Arizona grant- not conflict with the NVRA. Gonzalez did II), (9th Cir.2010). 624 F.3d 1162 summary judgment ed to Arizona on these In de trial, ciding challenge claims. After the district court re- Gonzalez and ITCA’s Arizona, registration all other claims in favor of provision, panel solved over holding Proposition contrary 200 did not violate ruled holding I Gonzalez Equal § 2 on ground exception VRA or the Protection that an to the law applied.4 Clause of Fourteenth Amendment and of the case rule See id. at 1185— doctrine, exceptions 4. Under the law of the case a court We now hold that the to the law generally exceptions will refuse to reconsider an issue of the case doctrine are not to our rule, i.e., already general decided that has been the same "law of the the rule circuit” higher published a court or a court in the same case. See that decision of this court consti- 1484, Wood, (9th binding authority v. F.3d 1488-89 114 tutes which "must be fol- Jeffries 1997) (en banc). recognized by body Cir. We have ex lowed and until unless a overruled doctrine, so,” Massanari, ceptions competent to the law of the case how to do Hart v. 266 ever, 1155, “(1) (9th Cir.2001). clearly where the decision is F.3d erro 1170 To the extent otherwise, prior suggested neous and its enforcement would work a that our cases see (2) 1492-93; Mendenhall, Jeffries, injustice, intervening controlling manifest 114 F.3d at 3; authority appropriate, makes reconsideration 213 F.3d at 469 n. Tahoe-Sierra Pres. (3) Council, Inc., 786-88, substantially they or different evidence was ad 216 F.3d at are determination, however, subsequent duced at a trial.” Id. at overruled. This 1489 (footnote omitted) (quoting recognized Caldwell exceptions v. does not affect other to Unified (In Inc.), Capital Corp. Magazine, re Rainbow the law of circuit See Miller v. the rule. 278, Gammie, (9th 1996)) (internal 889, (9th Cir.2003) (en 77 F.3d 281 Cir. 335 F.3d 900 omitted). banc) quotation (holding marks Some of our cases that where “the relevant court three-judge panel rely theory indicated that a could of last resort” has "undercut the or exceptions reasoning underlying prior prece- on these to overrule the law of the an circuit published long opinion, way clearly earlier so as no sub dent in such a that the cases are irreconcilable,” sequent panel yet three-judge panel had relied on it. See id. at then "a of 1492-93; NTSB, see also Mendenhall v. 213 this court and district courts should consider 464, (9th Cir.2000); by intervening higher F.3d 469 n. 3 Tahoe- themselves bound the Council, Reg’l authority reject prior opinion Sierra Pres. Inc. v. Tahoe Plan the of this 764, (9th overruled”); ning Agency, having effectively 216 F.3d 786-88 Cir. court as been see also Nat’l Cable & Telecomms. Ass’n v. 2000). Const, I, 4, nutshell, § In a the art. cl. 1. judges the active of U.S. majority A of initial re- governments given state are the rehear the case en banc. court voted to mechanics of sponsibility regulating for the II elections, the Congress given federal but is authority “make or alter” the states’ reg- Proposition 200’s We first consider regulations. Ariz.Rev.Stat. provision. istration See 166(F). and ITCA contend § Gonzalez 16— re- history The of the Elections Clause by the preempted provision that this unusual del- reasoning veals the behind its Clause Supremacy under both the NVRA of the Articles of egation power. Under Elections Clause of the U.S. Con- and the Confederation, authority full the states had on response, In Arizona relies stitution. maintain, appoint, congression- or recall “presumption Supremacy the Clause’s Philadelphia At delegates.5 al Conven- Medtronic, Inc. v. against preemption,” see that, tion, if delegates expressed concern 2240, Lohr, 470, 485, 116 518 U.S. S.Ct. unfettered, power left states could use this (1996), argue 135 L.Ed.2d to frustrate the creation of the national impliedly expressly neither nor NVRA Limits, government, Term Inc. v. see U.S. registration laws. preempts state voter Thornton, 808-09, 779, 115 S.Ct. U.S. addressing parties’ arguments, Before (1995), 131 L.Ed.2d 881 most obvi- the framework we first consider whether ously by neglecting to hold federal elec- Supremacy or the of Elections Clause tions. The Framers decided that Con- properly governs question. Clause this gress given authority should be related to procedures oversee states’

A safeguard against national elections as a The Elections Clause establishes id.; potential state abuse. See see also unique relationship between the state and (Alexander The Federalist No. at 168 It governments. provides: federal Hamilton) (Ron ed., P. Fairfield 2d ed.1981) Times, “[njothing can (explaining Places and Manner hold- be evident, ing Repre- power more than that an exclusive Elections Senators sentatives, prescribed regulating gov- shall be each elections for the national thereof; ernment, by Legislature legisla- but in the hands of the State State tures, Congress may any time Law would leave the existence of the entirely mercy”). Regulations, except make or alter such Union at their Over the chusing protest delegates,6 to the of some Places Senators. Southern Servs., 967, 982, delegates 545 Brand X Internet U.S. 6. South Carolinian Charles Pinck- 2688, (2005) (hold- ney Rutledge 125 S.Ct. 162 L.Ed.2d 820 and John moved to exclude the language giving Congress supervisory ing prior judicial this that a "court's construction power trumps agency over the states. 5 The Debates in the of a statute an construction Conventions, Adoption Several State on the only otherwise entitled to Chevron deference Constitution, by the Federal as Recommended prior if the decision holds that its con- court Philadelphia, the General Convention at unambiguous struction follows from the Together with the of the Fed- 1787. Journal and thus leaves room terms of the statute no Convention, Letter, discretion”). eral Luther Martin's agency Minutes, Congressional Opinions, Vir- Yates’s 1781, '98-'99, ginia Kentucky See Articles of Confederation of art. Resolutions of ("[D]elegates annually appointed V shall be and Other Illustrations of the Constitution ed., 1987) (Jonathan legislature (photo, reprint such manner as the of each State 401 Elliot ed.1901) power direct ... to each [hereinafter Debates]. shall with reserved 2d Elliot’s states, contended, state, delegates...."). they to recall its "The could and must

391 language giving provision; Con- “is a default it approved Framers invests the responsibility with power to “make or alter” states’ States for the mechan- gress congressional elections, Elliot’s 401-02 ics of regulations. See 5 Debates but so Madison). (statement Congress As modi- far as declines to preempt James state (citation omitted)). give Congress supervisory pow- legislative this choices” fied Moreover, er, language this became Elections we have held that the Elections requires states to implement Clause.7 Clause Con- gress’s superseding regulations without Thus, the Elections Clause em compensation from the govern- federal powers govern both the federal and state Wilson, Voting Rights ment. See v. Coal. governing laws the me ments to enact (9th Cir.1995). 1411, Thus, 60 1415 F.3d of federal elections. The clause chanics virtually provisions unlike all other of the authority gives pre states the default Constitution, the Elections gives Clause “Times, scribe the Places and Manner” of Congress power to “conscript state elections. conducting federal Neverthe agencies carry out” federal mandates. less, Congress “may any at time because sum, Id. In a state’s role in the creation or by regulations Law make alter” and implementation of pro- federal election state, power over federal passed cedures under the Elections Clause is to procedures ultimately “commit election administer the through elections its own Congress.” ted to the exclusive control of procedures Congress until deems other- Green, 549, 554, Colegrove v. 328 U.S. 66 wise; if Congress so, and when does (1946).8 1198, 1432 S.Ct. 90 L.Ed. While obligated states are to conform to and always Congress may not choose to exer carry procedures out whatever Congress exercised, power, cise this the ac “[w]hen Foster, requires. 69, See 522 U.S. 118 far it Congress, tion of so extends and S.Ct. 464. State, regulations conflicts with the of the necessarily supersedes them.” Ex Parte As should be clear from this Siebold, 371, 384, overview, 100 U.S. 25 L.Ed. 717 the Elections Clause operates (1879); Love, differently see also Foster v. 522 quite U.S. from the Supremacy 67, 69, 464, 118 S.Ct. 139 L.Ed.2d 369 The Supremacy provides Clause. Clause (1997) (stating that the Elections Clause that the laws of the United States “shall be regulate legislative appoint generally be relied on” to 8. The Court has construed Con- Id.; Jubelirer, ments. see also Vieth v. 541 gress's authority under the Elections Clause 267, 275-76, 1769, U.S. 124 S.Ct. 158 See, expansively. e.g., Mosley, United v. States (2004). L.Ed.2d 546 383, 386, 238 U.S. 35 S.Ct. 59 L.Ed. (1915) (authority right to enforce the 7. Alexander Hamilton described the need for eligible an voter to cast ballot and have ballot congressional oversight of the states as fol- counted); 731, 753-54, Coy, Ex Parte 127 U.S. lows: (1888) 8 S.Ct. (authority L.Ed. regula- have submitted the [The Framers] regulate any coinciding conduct at election government, tion of elections for the federal contest); (The parte Yarbrough with federal Ex instance, in the first to the local administra- Cases), 651, 662, Ku-Klux 110 U.S. 4 S.Ct. tions; which, cases, ordinary in and when 152, (1884) (authority 28 L.Ed. 274 to make improper prevail, may no views be both free, pure, additional laws for and safe exer- satisfactory; more convenient and more but vote); Clarke, right parte cise of to Ex 100 they authority have reserved to the national 399, 404, (1879) (authority U.S. 25 L.Ed. 715 right interpose, a to whenever extraordi- punish state election officers for violation nary might circumstances render that inter- congressional position necessary safety. of state duties vis-a-vis elec- to its 59, tions). The Federalist No. at 168. 392 Supremacy In contrast to the any ... of the Land supreme

the Law Clause, in preemption addresses ar which any or Laws of Thing in the Constitution police pow within the states’ historic eas Contrary notwithstanding.” to the State ers, Const, only Elections affects an the Clause VI, sys art. cl. Under our U.S. inherent area in which the states have no deciding sovereignty, dual courts tem of power: regulation reserved the of fed or preempt law is particular a state whether Limits, Term 514 eral elections. See U.S. must Supremacy the Clause ed under 804-05, 115 S.Ct. 1842. As the U.S. maintain the “delicate balance” strive to because Supreme explained, Court has the and the Federal Gov between States prior elections did not exist to the federal ernment, Ashcroft, Gregory v. 501 U.S. government, formation of the federal the 460, 2395, 452, 111 115 L.Ed.2d 410 S.Ct. authority regulate such elec states’ sole Medtronic, 485, (1991); 116 518 U.S. at see itself,” from tions the Constitution “aris[es] 2240, Congress is especially when S.Ct. 805, id. at 115 S.Ct. 1842. Because states “traditionally occu in an area regulating authority the do have no reserved over States,” v. pied by the United States elections, deciding main of federal courts 1135, 146 Locke, 89, 108, 120 S.Ct. 529 U.S. issues raised under the Elections Clause (2000) (internal quotation 69 L.Ed.2d preserving not be concerned with a need omitted); Lig v. Cipollone marks see also between competing “delicate balance” sov 504, 516, 112 2608, gett Grp., 505 U.S. S.Ct. Instead, Clause, ereigns. the Elections as (1992). Supreme 407 120 L.Ed.2d preemption provision, a standalone estab special guidelines has crafted to as Court reason, its own this lishes balance. For First, in striking sist courts this balance. against “presumption preemption” Supremacy courts Clause are applying “plain guide Suprem statement rule” that presumption against pre a begin with acy analysis Clause are not transferable to Good, emption. E.g., Grp. Altria v. 555 Elections Hark Clause context. See 77, 70, 538, U.S. 129 S.Ct. 172 L.Ed.2d 398 (6th Brunner, 445, less v. 545 F.3d 454 Medtronic, 485, (2008); 518 U.S. at 116 Cir.2008) (declining apply Supremacy because, principle applies S.Ct. 2240. This preemption principles analyzing Clause noted, recently “respect as the has Court NVRA). preemptive effect of the In independent sovereigns for the States as deed, Supreme suggested Court has system our federal leads us to assume Foster, Supreme up much. In Court cavalierly pre-empt does not Congress the Fifth held Circuit’s determination Wyeth v. Le state-law causes action.” a state election law was voided a federal vine, 555, 1187, 1195 n. 555 U.S. S.Ct. however, law; adopting election instead of (2009) (internal 3, quota 173 L.Ed.2d Supremacy the Fifth anal Circuit’s Clause omitted). Second, tion marks Court ysis, analyzed the claim under Court rule,” “plain a statement adopted has hold Clause, the Elections without ever men ing preempts that a federal a state statute against tioning presumption preemption it “clear and mani law when is the Foster, plain or statement rule. See Congress purpose Greg fest” to do so. 464, aff'g 90 F.3d 1026 U.S. 118 S.Ct. (inter ory, 501 U.S. at 111 S.Ct. 2395 (5th Cir.1996). fact, In survey our of Su omitted). quotation Only nal marks where opinions deciding issues un preme Court the state and federal laws cannot be recon der the Elections Clause reveals no case Congress’s ciled do courts hold that enact relied on or even dis where Court See, Altria, e.g., must prevail. Supremacy principles. ments 555 cussed Clause Be 76-77, 129 empowered U.S. at S.Ct. 538. cause the Elections Clause

393 Wilson, NVRA, the Congress congressional to enact see ered whether a enactment 1413-14, preemption analy- 60 F.3d at the a superseded Louisiana statute regulating applies that sis under Clause here. the same federal election procedure. Id. 68-69,

at 118 Specifically, S.Ct. 464. fed eral law set the date for congressional B as Tuesday elections after the first explained The first Supreme Court Monday 68, in November. Id. at 118 S.Ct. principles preemption of Elections Clause 464. A Louisiana statute established an Siebold, case, 100 U.S. 371. that In open primary in October for the offices of relationship Court likened the between United States Senator Representative. passed by legislatures laws state and those 70, Id. at Only 118 S.Ct. 464. if open by Congress enacted under the Elections primary failed to result in majority a can “prior subsequent Clause enact- didate a run would off election between the legislature.” at ments the same Id. 384. top two candidates Congress’s be held on Congress “The State laws which sees no specified day. election Id. In response to alter, occasion to but which it allows to challenge by voters, a Louisiana the Court stand, adopted by Congress.” are in effect unanimously held that the state and feder subsequent at as a legisla- Id. Just 388. al acts conflicted and thus the federal required “entirely ture is not to make an superseded statute the Louisiana law. Id. modifying new set” of laws when those of a 74, 118 at S.Ct. 464. prior legislature, Congress neither is re- quired wholly take regulation over the rejected The Court the state’s claim that procedures of federal election when choos- its statute and the federal enactment could certain ing to “make or alter” of the states’ 72-73, be construed harmoniously. Id. at at rules. Id. 384. There is no “intrinsic 118 S.Ct. 464. Louisiana asserted that “the difficulty cooperation” in such between the open primary system only concern[ed] legislatures state and national because the officials, ‘manner’ of electing federal not governments possess two do not an “equal- the ‘time’ at which the will elections take ity jurisdiction” respect with to federal 72, place.” Id. at 118 S.Ct. 464. The instances, at In all elections. Id. Court discarded the state’s “attempt State, they “the laws of the far as so are “merely draw this time-manner line” as inconsistent the laws of Congress with on wordplay” and an “imaginative character- subject, the same cease to have effect as 72-73, ization” of the statutes. Id. at laws.” Id. at 397. 464. Building upon principles S.Ct. Siebold, later, century Over a from the Court Supreme adopt Court declined to interpretation clarified what constitutes a conflict under a strained of the statutes to Foster, analysis. an Elections potential disagreement.9 Clause See reconcile a See 67, Rather, 522 U.S. 118 S.Ct. 464. Foster consid- emphasized id. the Court Con- needed, 9. The open primary sys- dissent’s claim in Foster there was one when a "blatant conflict” between the state and electing tem concerns the 'manner' of laws, 452, op. federal election dis. at is in- officials, federal not the 'time' at which the Rather, petitioners correct. in Foster place”). reject- elections will take The Court proffered reading a of the state and federal reading "merely wordplay.” ed this Id. technically statutes that at least a avoided provides similarly dissent a strained Foster, conflict. See 522 U.S. at reading Proposition of the NVRA and (arguing that “because Louisiana S.Ct. 445-46, op. see dis. at 447-48 which likewise provides 'general law election' on fed- short, falls see 397-401. infra day eral election in those unusual instances 394 registration, Congress then has exercised authority sup- not plenary

gress’s power regulation, its to “alter” the state’s conscript states to but to plant state rules regulation superseded. and that under the carry out federal enactments that, Clause, enough it and found Elections C and reading, natural the state under a the same this Elections Clause applying addressed Before federal enactments here, analysis wé must understand the were in conflict. Id. Re- procedures and scope application and of the federal and statute “down to the fusing pare issue, namely state statutes at the NVRA bone,” held that the definitional the Court 72, 74, Proposition registration provi- and 200’s at was void. Id. state enactment sion. 118 S.Ct. 464. prescribes three methods for NVRA and Foster to Reading Siebold voters for federal registering elections. gether, following approach derive the we § 1973gg-2(a). U.S.C. These methods enact determining for whether federal (1) “by application are: made simulta- displace the Elections Clause ments under neously application with an for a motor conducting federal procedures a state’s license,” § 1973gg- driver’s vehicle id. Siebold, First, suggested as elections. (2) 2(a)(1);10 “by application” using mail as if

we consider the and federal laws state prescribed by the Federal Form the Elec- they single system of federal comprise (EAC),11 tion Assistance Commission id. Siebold, at procedures. election 100 U.S. (3) §§ 1973gg-2(a)(2), 1973gg-4; “by complements If the state law application person” designated at sites scheme, congressional we treat procedural in accordance with state law or state voter by adopted Congress it as if it were § registration agencies, 1973gg-2(a)(3). id. If part Congress of that scheme. See id. procedures regis- States must “establish subject as the state addressed same through ter” voters all three methods “not- law, we consider whether the federal act withstanding any other Federal or State act, on a superseded has the state based any law” and “in addition to other method reading natural of the two laws and view registration provided of voter for under if it ing the federal act as were a subse § 1973gg-2(a).12 State law.” Id. quent by legislature. enactment the same Foster, 74, 464; prescribing at In connection with 522 U.S. 118 S.Ct. see these 72-73, registration, id. at 118 S.Ct. 464. If the two three methods of voter harmoniously not in a mandates the operate statutes do NVRA creation of two new First, single procedural registration applications. scheme for federal voter voter method, 107-252, EAC, any application 10. Under this for a 116 Stat. it created the driver's license submitted to a state motor eventually § 42 U.S.C. which absorbed authority applica- vehicle serve as “shall an NVRA, FEC’s duties under the see registration respect tion for voter with to elec- opinion, § U.S.C. 15532. In this we refer to applicant Federal tions for office unless the the EAC. both entities as registration sign applica- fails to the voter 1973gg-3(a)(l). provision § tion.” This require registration not 12.States do earned the statute its informal name: election-day registration poll- vote or allow “Motor Voter Law.” ing places exempt are from the NVRA. See Idaho, 1973gg-2(b). § These states are responsibilities 11. The of the EAC were for- Minnesota, Dakota, Hampshire, New North merly held the Federal Election Commis- Wisconsin, (FEC). Wyoming. Fed.Reg. Congress See 75 passed Help sion When (HAVA), 47,729-01, 47,730 9, 2010). (Aug. America Vote Act No. or Pub.L. requires states to create a com- the process.” § NVRA election 1973gg- Id. registra- 7(b)(1). driver’s license and Further, bined voter the Federal Form must (the application tion form “Motor Voter include a statement specifying eligi- “each Form”) pursuant to criteria set out Certain bility requirement (including citizenship)” 1973gg-3. § statute. See id. The voting along for with an “attestation that requires also NVRA EAC to create the the applicant meets each such require- Form, nationally a Federal uniform voter ment,” § 1973gg-7(b)(2)(A)-(B), id. and that application applicants reg- can use to require signature must “the appli- of the person designated ister mail and in cant, penalty under of perjury,” id. §§ id. 1973gg-4, 1973gg- locations. See § 1973gg-7(b)(2)(C). addition, In 7(a)(2). (but addition, In may states are provides NVRA the Federal Form to) required not create their own state “any requirement cannot include for nota- registration mail voter forms for federal authentication,” rization or other formal id. (the Form”), ' long elections “State so § 1973gg-7(b)(3).13 these forms meet certain criteria in the § 1973gg-4(a)(2). NVRA. See id. EAC, The NVRA directs the in consul- tation with “the chief election officers of The a NVRA sets out broad framework States,” develop the Federal Form Form, for the contents of the in- Federal in a manner consistent with these broad cluding specifying certain items must guidelines. § 1973gg-7(a)(2). Id. form, along be included on the with other discharged statutory EAC this require- § items that cannot be. id. 1973gg- See ment by designing a Federal Form that 7(b). § Among things, 1973gg- other id. met the criteria set forth in section 7(b) provides that “may the Federal Form 1973gg-7(b). 32,311-01 Fed.Reg. See 59 require only such identifying information (June 23, 1994), C.F.R., codified at 11 pt. necessary ... as is appropri- enable the (and designed by 9428. As the EAC sub- ate State election official to assess the sequently by HAVA, eligibility applicant of the and to modified adminis- U.S.C. ter registration parts §§ voter and other seq.), 15301 et the Federal Form is a full, include, (4)shall 1973-gg7(b) In section print states that the that is identical to Federal Form portion that used in the attestation of the (1) may require only identifying application— such infor- (including signature ap- mation (i) of the eligibility requirements voter and plicant) and (including other information penalties applications for false set forth in relating previous registration by data § 1973gg-6(a)(5); applicant), necessary as is to enable the (ii) that, applicant a statement if an de- appropriate State election official to assess vote, register clines to the fact that the eligibility applicant of the and to admin- applicant register has declined to will re- registration parts ister voter and other only main confidential and will be used process; the election registration purposes; for voter and (2) shall include a statement that— (iii) applicant a statement that if an does (A) specifies eligibility requirement each vote, register to the office at which the (including citizenship); applicant registration ap- a submits voter (B) appli- contains an attestation that the plication will remain confidential and requirement; cant meets each such registration will be used for voter (C) requires signature appli- of the purposes. cant, pénalty perjury; under § 1973gg-7(b). Id. (3) may any requirement not include authentication; or other notarization formal If a chooses to 1973gg-4(a)(2). § state § 9428.5. The 11 C.F.R.

postcard.14 See Form, con- a that form must citizen of create State you “Are the form asks top of the con- to the broad framework for form of America?” “Will the States United forth in of the Federal Form set election tents old on or before you years be 18 id. Arizona 1973gg-7(b). check section See applicant the to day?” boxes for with that is to create a State Form19 check “no” to chose Applicants who yes or no.15 requires Form but similar to the Federal are instructed not questions of these either persons voters and who If first-time applicant the form. the complete to Arizona counties have moved between questions, the form “yes” checks to both or the name, proof citizenship include of ad- “also requests applicant’s then the birth, rejected.” According to the dress, (op- number form will be telephone of date instructions, can applicant Form an tional), race or ethnic State party,16 choice of citizenship require- satisfy proof It re- this of and “ID number.”18 also group,17 (with by writing designated in a box on the signa- a ment quires applicant to attest mark) applicant’s Form the number of the that he or she is a U.S. State ture or nonoperating citizen, voting Arizona driver’s license or his or her state’s meets license issued after October provided and has identification eligibility requirements, 1, 1996,20 number, registration alien or that is “true to the best of [his information (as tribal identification number knowledge penalty perju- under or her] specified relevant). a If the lacks such citizenship applicant is ry.” proof No other U.S. number, pho- must include a postcard applicant Form required. The Federal tocopy acceptable mail of one of the documents may dropped into the or delivered be (such a listed on the State Form birth person designated in of the offices. to.one certificate, document, passport, U.S. tribal above, mandating noted in addition to As like) the form itself. along or the with Form, Federal the creation and use of the permits states to use develop allows states to and use While NVRA the NVRA register voters registering Form for vot- their own State Forms optional an State n elections, for the NVRA still re- elections. See U.S.C. federal ers for federal necessary Appendix plaining that ID numbers "are not Federal Form is set forth in 14. The determining eligibility appli- A. cant,” assisting but rather are for the states in administering registration process). questions two and the associated These 15. provides Form's instruction booklet Federal instructions were added to Federal Form the "ID num- state-specific instructions for 15483(b)(4)(A)(i)-(ii). § by HAVA. 42 U.S.C. Arizona, applicants pro- ber” box: for must license, non-operating vide a driver’s identifi- party” required in 16. "Choice of is some number, digits the last four of a cation license participate in states for voters who wish to number, security or write "None.” social required regis- primaries. It not closed is are consistent Ari- These instructions with general elections. See 59 Fed. ter to vote in obligations un- zona's election administration 32,314. Reg. at pp. HAVA.See at 401-02. der infra on 17. This box was included the Federal Form set forth in 19. The Arizona State states in their data Form to assist certain Appendix B. § pursuant 5 of the VRA. collection efforts 32,315-16. at Id. requiring applicants to 20. Arizona started provide of their status documentation lawful receiving a 18. The “ID number” is used for "election as U.S. residents as a condition of non-operating purposes.” C.F.R. identifica- administration driver's license or 32,314 9428.4(a)(6), (ex- Fed.Reg. § tion license after October see 59 every “accept applicant’s state to and use” the number of the quires driver’s license by the developed Form EAC. See nonoperating license, Federal or identification cer- (“In 1973gg-4(a)(2) § addition ac- id. tain numbers associated with Native Form], using Federal cepting [the status, American tribal of a number a mail may develop and use voter State (or certificate of in-per- naturalization form meets all of the registration presentation son of naturalization docu- 1973gg-7(b) criteria stated section of ments), legible or a photocopy of a U.S. registration this title for the of voters birth certificate or passport.21 See id. (emphasis for Federal office.” elections terms, By its proof this of citizenship added)). way, guaran- In this the NVRA requirement applies to the Federal Form in applicant any seeking tees an state that as well as to Arizona’s State Form.22 In may to to vote in federal register elections words, Proposition other registration 200’s using do the Federal Form. so

provision county directs Arizona recorders D reject every to Federal Form that is sub- mitted without specified the evidence of provisions reviewed the relevant Having citizenship. According to the Arizona NVRA, turn Proposition of the we now to Manual, Election Procedures which has ¡which registration provision, 200’s states: law, the force and effect of see Ariz.Rev. reject county any ap- “The recorder shall 16-452, § rejected Stat. if a plication registration that is not accom- applicant wants to make a second attempt provide to panied by satisfactory evidence of United § evidence of he or citizenship.” citizenship, States Ariz.Rev.Stat. 16- she must 166(F). entirely submit an satisfactory registration The statute defines new voter citizenship evidence of U.S. to include the form in order to do so.23 166(F) provides following 21.Section the tratioh rolls until the number of the certifi- 16— approved list of identification documents: cate of naturalization is verified with the immigration United States and naturaliza- applicant’s 1. The number of the driver by county tion service the recorder. nonoperating license or identification li- 5. Other proof or methods of documents cense issued after October the pursuant that are established to the immi- department transportation equiva- of or the gration reform and governmental control act of 1986. agency lent of another state applicant’s 6. The bureau of Indian agency affairs within the United States if the indi- number, treaty card tribal applicant's card number or cates on the driver license or tribal enrollment nonoperating number. identification license that the person provided satisfactory proof has of Proposition 200 also amended state law to 22. citizenship. United States require Arizona’s State Form to “contain ... legible photocopy applicant’s A2. of the . applicant statement [a] that the shall submit citizenship birth certificate that verifies to ' evidence citizenship of United States with the county the satisfaction of the recorder. application registrar reject and that the shall legible photocopy pertinent A pages application if citizenship no evidence of is applicant’s passport of the United States 16-152(A)(23). § attached.” Ariz.Rev.Stat. identifying applicant applicant's and the provision Because this not does affect the passport presentation number or to the Form, Federal we do not consider it here. county applicant's recorder of the United passport. States county 23. The manual instructs recorders: presentation county 4. A to the recorder of applicant’s registration] United States naturalization If voter [a form is not accom- panied by proper documents or the proof citizenship, number of the certificate registration naturalization. If the number of the voter form is not valid and ei- provided, certificate of system naturalization is ther will not be entered into or if applicant regis- system, shall not be in the it was entered into the the record included procedures, arguing harmonize these

E county accept recorder will because and ITCA’s turn Gonzalez We now registration Form for voter so the Federal requirement that the NVRA’s contention satisfactory it includes evidence of long as use” the Federal “accept states county recorder is in fact citizenship, Proposition regis- 200’s supersedes Form mandate to complying with NVRA’s applied applicants provision tration Form, per the Federal “accept and use” Form.24 using the Federal 1973gg 4(a)(l)t Rejection § of the U.S.C. — we assessing argument, In this circumstances, Federal Form certain we apply the Elections Clause framework argues, Arizona does not itself mean and con derived from Siebold and Foster failing accept and use that the state Proposition reg 200’s sider the NVRA Indeed, asserts, Arizona the form. Con- they comprise as if provision istration contemplated that some gress must have proce election single system of federal Form applicants using the Federal would mail respect regis voter dures. With rejected, because the NVRA directs be tration, provides “[e]ach the NVRA notify applicant states to “each of the dis- and use” the Federal accept State shall position application.” of or Id. [his her] registration Form “for the of voters § 1973gg-6(a)(2). 42 for Federal office.” U.S.C. elections contrast, § 1973gg-4(a)(l). By Proposi disagree. Although We Arizona has of- provision directs registration tion 200’s interpretation fered a of the state creative “reject county any application to recorders and federal statutes in an effort to avoid a accompanied by not registration that is conflict, direct we do not strain to reconcile citi satisfactory evidence of United States regulations a state’s federal election with Ariz. zenship,” as defined Arizona law. Congress, of consider whether those but 16-166(F). togeth § read Rev.Stat. When procedures operate the state and federal er, treat the federal and state enactments harmoniously natural- together when read matter, subject namely, pro the the same Foster, 72-74, ly. 522 at See U.S. 118 registering by cedure for mail to vote 464; Siebold, Here, S.Ct. U.S. Form, using federal elections the Federal NVRA, reading under a natural of the they harmoniously. In operate but do not rejection every Arizona’s of Federal Form fact, seriously procedures these are out of citizenship without of does proof submitted ways. tune with each other in several “accepting using” not constitute First, county re- requires the NVRA Federal Form. Arizona cannot cast doubt accept by pointing Form on conclusion out that the corder to and use Federal this elections, register reject applicants to for federal allows states to voters NVRA registration provision requires eligibility whereas the who fail to demonstrate their reject Congress county pursuant the same recorder to the Federal Form. reg- clearly anticipated reject Federal for voter that states would Form as insufficient proof responses if the form to the Federal applicants istration does not include whose vote, they citizenship. attempts young of U.S. Arizona to Form indicate are too registrant challenge Prop- shall be canceled. If the subse- 24. Gonzalez and ITCA do not quently provides proof citizenship, it registration provision applied 200’s osition accompanied by regis- must be a new voter to Arizona’s State Form. registration tration form and a new date. Secretary Arizona of State Elections Proce- (Oct.2007). dures Manual state, premise conclusion, or not do not live within have dissent’s and its which Indeed, being attested to U.S. citizens. contrary to the text of the statute. The request instructs the EAC to NVRA clearly requires accept NVRA states to information on the Federal Form for the (as designed by and use the Federal Form purpose “enabling] appro- precise EAC) addition to” “[i]n the State official priate State to assess the election Form. eligibility applicant.” of the U.S.C. provision, The NVRA’s State Form Thus, 1973gg-7(b)(l). § a state that as- § 1973gg-4(a)(2), merely gives a state an applicant’s eligibility sesses based on options. Congress more couíd have re- requested the information on the Federal quired all states use the Federal “accepting using” Form is the form in Form, EAC, as designed by the for federal exactly way it meant to was be used. so, If Congress elections. had done then contrast, In Proposition registration 200’s states could not use their registration state provision county directs recorders to as- register forms to applicants for federal applicant’s eligibility sess an based on Instead, elections. Congress allowed proof citizenship information that is not registration States to use their state forms Form, on requested the Federal and to to register applicants for both state and reject all Federal Forms that are submit- federal (provided elections the state form proof. Rejecting ted without such complies § 1973gg-7(b)).25 with But Federal Form because the applicant failed reject states applicants cannot regis- who required include information that is not ter for federal elections who use the Fed- contrary that form is to the form’s eral Form. There nothing illogical or purpose. intended use and inconsistent about requiring states to ac- attempts justify The dissent likewise to cept registration the federal form in addi- rejection Form,

Arizona’s of the Federal tion to their own state form. arguments but rests its exclusively almost In order to avoid the import clear of the § on the fact that 1973gg-4(a)(2) allows text, NVRA’s argues dissent that the develop Form, states to and' use a State Federal Form merely establishes the de- may requirements which include that are fault minimum registration or baseline re- not included in the Federal Form. See dis. quirements. 445-46, 444-46, op. See dis. at op. at 446-48. According to the effect, In dissent, the dissent wants to replace the may impose because states addi- “in words addition to” with tional the words “in- proof-of-citizenship requirements on of,” stead so that “a applicants Form, may develop State using the State it neces- and use a mail sarily may registration follows that states voter form that impose the meets all of proof-of-citizenship requirements same the criteria stated in on section Form; 1973gg-7(b) applicants using the Federal of this that title” instead “ac- of is, they may reject cepting that using” Federal and Forms Federal Form. We that statute, do not include the additional have no proof authority of to rewrite the however, citizenship. op. See dis. reject 445-48. But and interpre- the dissent’s logical there is no connection between the tation being plain inconsistent with the exactly 25. The dissent therefore it register has back- tration forms to voters elections for that, office; asserting interpreta- wards in they under our simply may require federal not 1973gg-4(a)(2), (or § may registrants tion of states not use to use the State Form registration Form, register their state equivalent forms to "vot- namely, of the State op. ers in elections for Federal office.” Dis. Federal Form altered to include additional may regis- at 448-49. requirements). States use their state state (“In necessary to seek such information as is accept- to to language. See id. addition Form], eligibility applicant,” a State of the id. using Federal “assess ing [the registra- use a mail voter may develop expressly not 1973gg-7(b)(l), § and does the criteria that meets all of tion form requirement applicants preclude title 1973gg-7(b) of this in section stated Further, Ari- citizenship. provide proof in elections registration of voters for the Congress pro- that although zona asserts added)). (emphasis Federal office.” for registration that the mail form vided voter for no- Second, registration “may any requirement 200’s not include Proposition authentication,” delega- with the NVRA’s clashes tarization or other formal provision (not authority to the EAC § tion of 1973gg-7(b)(3), id. Arizona’s demand states) the contents of to determine proof citizenship does not amount § 1973gg-7(a)(2). Form. See id. Federal argument miss- requirement. such a This may suggest changes to the states While de- point. assuming, es the Even without Form, the ultimate Federal the EAC has that Arizona is correct its inter- ciding, reject sugges- authority adopt or those 1973gg-7(b), this pretation of section § 1973gg-7(a). id. Here the tions. See mean the NVRA allows would rejecting Arizona a letter its EAC sent proof citizenship Arizona to include a modify the Federal Form to proposal to requirement on its State Form. See id. present documentary require applicants (allowing § a state to “de- 1973gg-4(a)(2) register, citizenship in order to see proof of velop registration and use a mail voter n.29, Arizona neverthe- p. but infra form that meets all of the criteria stated in impose this additional proceeded less 1973gg-7(b)”). section It would not mean applicants using the Fed- requirement on authority that Arizona has to add this re- engraft- Arizona’s insistence on eral Form. Congress to the Federal Form. quirement requirement ing an additional on the Fed- that decision to Once entrusted the EAC. Form, in the face of the eral even EAC’s of the the EAC determined the contents rejection proposal, of its accentuates the Form, Arizona’s role was to Federal pro- the state and federal conflict between applicants make that form available to and cedures.26 it “accept registration to and use” for the attempts Arizona to minimize the clash of voters. Proposition by the 200 between NVRA Third, Proposition registration 200’s

noting proof citizenship require- that a of the provision is discordant with NVRA’s frame- ment is consistent with the broad pro- goal streamlining registration of the by Congress work set out in section Coal, See, e.g., Nat’l Students Arizona cess. 1973gg-7(b); specifically, Proposition registration provision. 200’s on Because its face the NVRA concerns, Ari-

Notwithstanding give these does not states room to own add their regis- Form, that 200’s to the Ari Proposition requirements zona asserts Federal provision imposes suggests Congress’s tration additional zona that subsequent little applicants, only permits on a burden enactment of HAVA us to reinter because small minority of li- applicants pret a driver’s the to impose lack NVRA allow states to the be used that 27. Because Federal Form can al information the merchant had re not token, postcard, By quested. a mail-in the credit card the same dissent's the Federal 446, analogy, op. point. request see dis. on documentary proof at is not A Form not of does rightly cry "accept a citizenship. consumer would merchant Because a state foul if must merely "accept reject it would form it claimed and use” mailed-in and use” this cannot it applicant card purchase, information for a but has mailed it in without credit because an complete including refused to be that expressly then the transaction information is not : required. the addition cause consumer failed to include technology and ad- establishing election applicants on requirements additional are more requirements that disagree, ministration Again, we registration. voter established requirements than the precludes strict by its terms HAVA because long as such State re- under so [HAVA] interpretation. an such with the are not inconsistent quirements response in to HAVA Congress enacted or requirements under [HAVA] Federal the en election and 2000 Presidential the in 15545 of this any described section law recount. See controversial Florida suing § 15545 is Id. 15484. Section title.” v. NAACP Fla. State of Conference provides clause: it savings HAVA’s (11th Cir. F.3d Browning, 522 speci- changes the to the NVRA except for 2008). the NVRA and part, For the most HAVA, may in Act be “nothing in this fied spheres: the operate separate HAVA conduct require to authorize or construed where regulates registration, voter NVRA number of federal prohibited [a under updating elec is concerned with as HAVA NVRA], laws, super- including the or to election-day other technologies and tion restrict, sede, application limit the or However, a hand polling places. issues 15545(a). §Id. laws].” federal [those to the in HAVA relate provisions ful of gives it the argues Arizona that HAVA primarily by registration process, voter require- authority impose to additional through which states creating mechanisms Federal applicants using on appears who to ments person can ensure that the First, Arizona con- Form for two reasons. person is the same polls cast a ballot at the here, directs states to tends that because HAVA to vote. Relevant registered who (or verify accuracy of the driver’s license assign) obtain requires HAVA states to security provided numbers on the regis all or social unique numbers for identification 15483(a)(5)(A)(iii), Form, § provide must Federal see id. applicant tered voters: each authority or the must likewise have or her license number Arizona his driver’s information security verify accuracy of other digits of his or her social last four form, Form, including appli- an or on the Federal registration on the voter number Second, Ari- number, citizenship. a cant’s claim applicant if the lacks such zona asserts that because HAVA estab- assign applicant must a number state requirements,” and identify lishes “minimum applicant will serve to “which develop “election tech- 42 authorizes states to registration purposes.” for voter 15483(a)(5)(A)(i)-(ii). addition, requirements nology § In and administration U.S.C. than re- steps verify [HAVA’s] that the that are more strict states are to take § gives id. HAVA identity quirements,” claimed matches the applicant’s re- green light impose stricter provided. number he or she states identification 15483(a)(5)(A)(iii) quirements registration. § on voter (requiring id. See states to “determine whether the [identifi arguments light these fail Both of by an individ provided information cation] clause, clear savings which makes HAVA’s requirements” ual is sufficient meet Congress preserve intended to HAVA); Crawford, 553 at of see also U.S. changes it except specific as to the NVRA 192, 128 S.Ct. in HAVA made enacted HAVA. While NVRA, not to the it did language limiting changes handful of

HAVA also includes to citizenship requirement of require- proof It that add a scope. “[t]he its clarifies authorize Form and did not by are mini- the Federal [HAVA] ments established explained do so. For the reasons nothing mum and in states to requirements [HAVA] above, of that al- interpretation an HAVA prevent construed to a State from shall be the lows states to override EAC’s authori- this by EAC struck balance requiring ap- ty designing plicants in the Federal Form would to attest citizenship to their under restrict, or limit “supersede, applica- penalty perjury, the of requiring but not other 15545(a). § tion of’ the NVRA. Id. Be- of proof citizenship. 59 Fed.Reg. See at (“The 32,316 savings precludes cause the clause such an issue of U.S. citizenship is interpretation, adopt we decline to one. addressed within the oath required by the Therefore, provide HAVA does not Ari- Act signed and by applicant the under zona it the authorization seeks. penalty perjury. of emphasize To further prerequisite

this applicant, to the the G words ‘For Only’ U.S. Citizens appear will prominent type in on the front cover of the recognize We Arizona’s concern about form.”). national mail registration voter registration. fraudulent voter Neverthe- Though Arizona eloquently expressed has less, gives the Elections Clause Congress its striking reasons for the balance differ- the last word on how this concern bewill ently, the federal determination controls in of addressed in the context federal elec- this context. See v. Edgar, ACORN tions. As by is evidenced one of the four (7th 791, Cir.1995) F.3d 795-96 (rejecting NVRA, articulated of the purposes which argument Illinois’s that because the “mo- protect integrity “to of the electoral component tor voter” of the “opens NVRA process,” § 1973gg(b)(3), Congress id. was fraud,” the door to voter the state was well aware of problem of voter fraud law). to comply entitled refuse to with the passed when it act provided and protections numerous fraud in the sum, In Proposition NVRA and 200’s NVRA.28 registration provision, when interpreted respect Form, With to naturally, the Federal Con- do not operate harmoniously as gress delegated to the EAC procedural the decision of a single scheme for regis- how balance “to to the need establish pro- tration of voters for federal elections. will Therefore, cedures that increase the of number under Congress’s expansive eligible register citizens who to vote Elections power, Clause we must hold that elections for Federal office” and the need the registration provision, applied when to protect “the integrity Form, the electoral the Federal is preempted by the (3). process,” § 1973gg(b)(l), id. The NVRA.29 safeguards

28. These disposition applications, include the re- NVRA's their which states Form, quirement that the Federal the State may regis- use as a means to detect fraudulent Forms, and Motor Voter Forms contain § 1973gg 6(a)(2). trations. See id. — require- an attestation that clause sets out the 29.. We reach our conclusion based on the eligibility. 1973gg- §§ ments for voter Id. statute, language and structure of the and 3(c)(2)(C)(i)-(ii), 1973gg-7(b)(2)(A)-(B). Ap- rely interpreta- therefore do not on the EAC's plicants required sign are these forms un- legislative tion of the NVRA or the NVRA’s penalty perjury, 1973gg- der §§ id. history. 3(c)(2)(C)(iii), While ITCAmaintains EAC’s 1973gg-7(b)(2)(C), persons view is entitled to some level of deference knowingly willfully engage who in fraud- Co., 134, under v. Skidmore & 323 U.S. registration practices subject ulent are Swift (1944), 65 S.Ct. 89 L.Ed. 124 Arizona penalties, 1973gg-10(2). § id. criminal In addition, argues Congress delegate any did not require the NVRA allows states to NVRA, authority interpret register to the EAC first-time voters who mail to vote § person see 42 U.S.C. polling place, and thus deference is where the identity appropriate. be not We voter's can confirmed. See id. need not resolve this § 1973gg-4(c). Finally, 1973gg-6 dispute, merely section re- but note the that both EAC’s quires give applicants to states notice to the legislative history of view and the NVRA's are 404 prerequisite to of as a dress the elector”

III § 16- a ballot. Ariz.Rev.Stat. receiving super- that the NVRA we hold Because State, 579(A) (2005). of Secretary provi- registration 200's Proposition sedes statutory authority, see Ariz. acting under analysis focus- sion,30 of our remainder the 16-452(A), (B), promulgated a § Rev.Stat. Proposition validity of solely the on es of identifi- procedure specifying the “forms Proposition provision. place polling 200’s statute, which under the accepted cation” of the Arizona 16-579 amended section 200 photograph-bearing documents included a voter require to that as Revised Statutes as well non- as driver’s licenses such of that form identification such as one documents “present photograph-bearing 2009, In name, photograph and or statements. utility address bills bank bears the amended section 16- legislature forms of two different the state of the elector or codify procedure.31 that 579 to the name ad- that bear identification (a) identification that bears holding. A valid form of In its letter to with our consistent Arizona, of the photograph, not the name and address construed NVRA as the EAC acceptance reasonably appear of that to be the permitting to "condition elector states receipt upon pre- of additional as the name and address in the Federal Form same legislative to the histo- proof.” respect register, including With an driver cinct Arizona Report, license, we which ry, the Conference nonoperating NVRA’s identifica- an Arizona license, and reli- is the authoritative have held most enrollment card or tion a tribal see, material, e.g., Nw. Forest legislative able a identification or Unit- other form of tribal Glickman, v. 82 F.3d federal, Res. Council government state or local ed States Cir.1996), rejected (9th Congress shows that is identification. Identification issued which would to the NVRA an amendment valid unless it can be determined deemed "nothing Act provided in this shall that have expired. has on face that it its presentation requiring of prevent State a from (b) that contain the different items Two relating citizenship of an documentation that rea- and address of the elector name H.R.Rep. registration,” applicant for voter sonably appear be same as the name 103-66, (1993), reprinted in No. precinct register, includ- and address in conferees ex- 148. The U.S.C.C.A.N. bill, ing utility a or union bank credit a was not "consis- plained that amendment ninety days that is dated within statement purposes of” the NVRA and tent with the election, a valid Arizona of the date of eliminate, seriously effectively or inter- "could registration, in- an Arizona vehicle vehicle with, registration program of the the mail fere card, card, an census tribal surance Indian Act.” Id. or of tribal card other form enrollment statement, identification, property a a tax authority Congress's under the Elections 30. certificate, registration a voter recorder’s preempting regula- state Clause is limited federal, card, state or a valid United States they to federal elections. as relate tions Therefore, or government issued identification local holding invalidating Proposi- our mailing any as "official elec- that is labeled provision pre- registration does not tion 200’s Identification is deemed tion material.” proof applying a from citizen- vent Arizona on can be determined its face valid unless it registrations ship requirement for voter expired. that has it However, because Arizona state elections. (c) bears A valid form identification registration system presented its of voter has photograph, name and address of concurrently registering for state voters as except address on the that if the elector elections, we do not consider and federal reasonably appear to does not identification registration provi- Proposition 200's whether sion, precinct same as the address in the be the registrations applied to voter register valid or is a Unit- the identification elections, valid under Gonzalez state Military card a identification or ed States remaining claims. ITCA's passport and does not United States valid address, be 16-579(A)(1) the identification must provides bear an now Section listed in accompanied one of items any following” "present of the voter must (b) paragraph. this being permitted subdivision to vote: before

405 Maria, challenge City 543, and ITCA Ruiz v. Proposi- Gonzalez Santa 160 F.3d of (9th Cir.1998) curiam), (per on 557 polling place provision proof tion 200’s three of voting challenged it is a “causal connection between the grounds: prohibited that VRA, practice a voting prohibited 2 discrimi qualification under section of the crucial, natory is tax result” Smith v. poll an unconstitutional under the Salt Amendment, Project Agñc. River Improvement a & Pow Twenty-fourth and violation Dist., (9th 586, Cir.1997) er 109 F.3d 595 Equal of the Fourteenth Amendment’s (internal quotation marks and brackets We first consider Protection Clause. Gon- omitted); (“[A] see also id. bare statisti argument Proposition zalez’s 200’s cal of showing disproportionate impact on polling place provision 2 violates section of minority § a satisfy racial does not 2 the the VRA. otherwise, inquiry.”). § ‘results’ Said 2 a A challenge purely “based on a of showing some relevant disparity statistical between 2(a) of pro Section the VRA whites,” minorities and any without evi any from imposing voting hibits states challenged dence that the voting qualifica in qualification “results a denial or tion disparity, rejected. causes that will be of of abridgement right any the citizen of Id.32 the States to vote on account of United 1973(a). § or race color.” 42 U.S.C. A In applying totality the of the cir “if, 2 violation of section is established test, cumstances “a court must assess the circumstances, totality on of it based impact of the contested prac structure or the political processes leading shown that minority tice on opportunities electoral ‘on ” to in nomination or election the State or objective the basis of factors.’ Thornburg political are not equally open subdivision to 30, 44, v. 2752, Gingles, 478 U.S. 106 S.Ct. participation” by protected members of a (1986) 92 25 (quoting L.Ed.2d S.Rep. No. class, “in op that its members have less 97-417, (1982), at 27 repñnted in 1982 portunity than other members of the 205). 177, Gingles, U.S.C.C.A.N. In electorate ^[1] participate in political Supreme Court cited a non-exhaustive list process ^[2] elect representatives of of nine factors (generally referred to as 1973(b). § their choice.” Id. Said other Factors” they “Senate because were wise, plaintiff prevail a can in 2 a section Report discussed the Senate on the 1982 only if, totality VRA) claim “based on the of amendments to the that courts circumstances, voting ... the challenged in making should consider this totality practice results discrimination on ac the circumstances assessment. Id. at 44- 45, count of v. Washington, race.” Farrakhan here, 106 2752. S.Ct. Relevant (9th 1009, 1017 Cir.2003) 338 F.3d (empha factors direct courts to consider the histo omitted); sis ry see also v. United States of official state against discrimination (9th Cnty., Blaine 363 F.3d Cir. minority respect 903 with voting, 2004). Although § 2 proving a violation of voting extent which in the state is ra require showing does not cially polarized, discriminato and “the extent to which ry intent, only discriminatory results, see minority group members of the in the Roemer, 380, 383-84, Chisom v. 501 political U.S. state or subdivision bear ef (1991); S.Ct. L.Ed.2d 348 fects of discrimination in such areas as approach applies 32. This both to claims vote and of vote dilution. n. denial Id.

406 proof no of a health, there was failed because and which

education, employment Proposition ability relationship to effective- between participate causal hinder their 36-37, at Id. process.” impact ly political any alleged discriminatory in the 200 and 97-417, S.Rep. No. (quoting 2752 106 S.Ct. that court noted on Latinos. district 1982 28-29, reprinted in U.S.C.C.A.N. at to testified a causal single expert not a Farrakhan, at 206-07); 338 F.3d at see Proposition 200’s re- between connection 1016, requirement is no “[T]here 1020. in difference and the observed quirements be of factors number any particular that Latinos, and that Gon- voting rates of them majority point of that a proved, or Proposition to how explain zalez had failed U.S. Gingles, the other.” 478 way one or the social requirements interact with 200’s No. 45, (quoting S.Rep. 2752 106 S.Ct. at of and climate discrimination historical 97-417, 29, in 1982 reprinted at in Arizona. There- impact voting Latino (internal 209) quotation at U.S.C.C.A.N. fore, that court concluded district omitted). marks Proposition not that proved Gonzalez had argues Proposition Gonzalez “on in account 200 results discrimination voters, un Latino impacts disparately 200 of race or color.” and lawfully right their to vote diluting right provid them the vote denying analysis § 2 Because a re than other ing opportunity them with less engage court to in a quires the district participate of the electorate members ‘past of the “searching practical evaluation both process. Considering political in the ” reality,’ Gingles, 478 U.S. at present and registration requirement Proposition 200’s 97-417, 45, (quoting Rep. S.Ct. 2752 S. 106 who cast requirement -its that voters and 30, at reprinted at in 1982 U.S.C.C.A.N. present specified iden polls at ballots 208), in such a district court’s examination determined, tification, the district court “intensely fact-based and local a case is whole, a facts as “examining the after River, ized,” at 109 F.3d 591. Salt We sta 200 does not have a Proposition [that] district court’s therefore to the “[d]efer[] impact on disparate tistically significant id., capabilities,” and superior fact-finding considering In the Sen Latino voters.”33 court’s for clear error the district review above, court the district ate Factors listed fact, including its ultimate find findings of history a Latinos had suffered found that whether, totality ing under cir in Arizona that hindered discrimination cumstances, challenged practice vio ability political in the participate their 2, Cooney, § Person v. 230 F.3d lates Old fully, that there were socioeco process Cir.2000) (9th 1113, Gingles, (citing 1119 disparities between Latinos- nomic 2752). 78-79, 106 S.Ct. We U.S. Arizona, that Arizona con whites legal de novo the district court’s review racially degree of tinues to have some findings of law Nevertheless, determinations and mixed dis voting. polarized River, 109 F.3d at 591. claim and fact. Salt trict court concluded that Gonzalez’s Proposition heavily plaintiffs had not shown that Judge Pregerson’s dissent relies on. statistically significant impact plaintiffs' on Latino analysis prepared by the had a statistical voters, rejected implicitly op. at the district court expert, Lanier. Dis. 442-43. Dr. Louis however, testimony, "plau- that is La- Lanier’s conclusion expert, testified that The state’s light light of the record viewed in its entire- of sever- sible nier’s were unreliable in results factors, City, ty.” v. 470 U.S. including Anderson Bessemer the absence evidence al 573-74, 84 L.Ed.2d 518 105 S.Ct. whose votes went uncounted that the Latinos (1985). holding In qualified were to vote. clearly provision court did not err in Twenty-fourth The district violates concluding that Gonzalez failed to establish Amendment to the U.S. Constitution.36 Proposition polling place provi- that 200’s Twenty-fourth The pro- Amendment sion, 16-579, § had a see Ariz.Rev.Stat. vides: prove on a disparate impact Latinos. To violation, § 2 Gonzalez had to establish right The of citizens of the United requirement, applied that this to Lati- to in any primary States vote or other nos, discriminatory prohibited caused a re- for President, election President or Vice Here, alleged sult. Gonzalez that “Lati- for electors for President or Vice Presi- nos, among groups, other ethnic are less dent, or for or Representative Senator likely possess the to forms of identification Congress, in shall not be denied or required 200 ... Proposition under to cast abridged by the any United States or ballot,” produced but sup- a no evidence by State reason of failure pay any poll to porting allegation.34 this The record does tax or other tax. general of include evidence Arizona’s histo- Const, XXIV, ry against § of discrimination Latinos U.S. amend. 1. and Gonzalez racially of polarized the existence and do not voting. argue ITCA that requiring But Gonzalez adduced no evidence that voters to show identification at polls the is ability inability or to Latinos’ obtain or Rather, itself a poll they argue that, tax. for possess voting identification purposes because some possess voters do not (whether interacting or with the not histo- required identification Proposition under ry racially of discrimination and polarized 200, those voters will required spend be to in voting) resulted Latinos having op- less money requisite to obtain the documenta- portunity participate political pro- to in the tion, that payment this is indirectly of representatives cess and to elect their equivalent right to a tax on the to vote. evidence, choice. Without such we cannot analysis This is Al incorrect. say finding that the district court’s that though obtaining the identification re prove Gonzalez failed causation was quired may cost, § under 16-579 have a it clearly erroneous. Therefore we affirm (that is, is a tax poll neither it is itself not of district court’s denial Gonzalez’s a fee imposed on voters as a prerequisite VRA claim.35 it voting), imposed nor is a burden on B pay voters who refuse to a poll tax. Cf. Harman, 541-42, We consider next Gonzalez and ITCA’s at U.S. 85 S.Ct. claim Proposition polling place that 200’s any 36.Although 34. The dissent likewise briefing collapses fails cite evi- ITCA’s Twenty-fourth and support theory Proposition Fourteenth Amendment dence to that poll single argument, tax claims into a these polling place provision 200’s "has the effect are different claims that arise under different keeping away polls” Latino voters from the Twenty- constitutional amendments. it because “evokes fear of discrimination.” fourth Amendment extends to federal op. Dis. at 444. elections, Forssenius, see Harman v. 380 U.S. 528, 540, 1177, 85 S.Ct. 14 L.Ed.2d 50 argues

35. Gonzalez also that the district court (1965), whereas the Fourteenth Amendment evaluating erred in one of the Senate Factors right can also invalidate restrictions on the concluding disparate impact that elections, Harper vote state see v. Va. State statistically insignificant. on Latinos was Be- 663, Elections, 666, Bd. 383 U.S. S.Ct. disposi- cause the failure show causation (1966). 16 L.Ed.2d 169 We will there- tive, however, we need not separately. reach these issues. fore address two these claims poll pay who refuses to upon the voter with Har- is consistent Our conclusion right man, abridgment an his only Supreme Court case consid- tax constitutes poll ban ering Twenty-fourth pay Amendment’s failure to reason of to vote case, In the Court poll on taxes. 85 S.Ct. 1177. tax.” Id. required a considered state statute provision place Proposition polling 200’s an poll tax on pay to either a voters $1.50 Requir- Harman. poll tax under is not “cumbersome go through a annual basis or at the ing to show identification voters 1177, 541, for at 85 S.Ct. id. procedure,” a tax.37 does not constitute Nor polls does residence, of id. filing annual certificate an a ma- place requirement the identification no 530-32, There 1177. was at 85 S.Ct. of “solely a because on voter terial burden fee, a if it were dispute that the $1.50 im- constitutional his to waive [his] refusal voting, would freestanding for prerequisite id.; rather, tax, under poll to munity” a by the Twen- poll a tax barred constitute 200, required all are to Proposition voters 540, at See id. ty-fourth Amendment. Be- polls. at the present identification Accordingly, question the S.Ct. 1177. not, a mat- system Arizona’s does as cause whether the state the Court was before law, tax, poll a affirm ter of as we qualify constitutionally the “may confront federal Proposi- conclusion that the district court’s a he either requirement that voter with polling place provision does not tion 200’s customary required poll taxes pay the Twenty-fourth Amendment. the violate of elections or file a certificate for state 538, at 1177. Id. 85 S.Ct. residence.” the rule that a state

The enunciated Court C requirement “a may impose not material 200’s Proposition polling Nor is to surrender solely upon those who refuse tax poll an unconstitutional place provision to federal right their vote constitutional Equal Amendment’s under the Fourteenth a tax.” Id. paying poll without elections Harper leading is the Protection Clause. rule, 541, Applying at 1177. this 85 S.Ct. considering whether a Supreme Court case cer- that the state’s the Court determined the Four poll state law is a tax under a requirement was tificate of residence Harper, In the Su teenth Amendment. the among things, other material burden: levying law preme Court held that state filing un- the certificate was procedure poll tax on individuals an annual $1.50 clear, that the certificate requirement the exercising right to vote was unconsti their six the election be filed months before Equal Protection tutional under the disenfranchising “perpetuat[ed] one of the 1, at 664-66 & n. 86 S.Ct. Clause. 383 U.S. poll tax which the characteristics of the of that “the interest 1079. Court held designed Twenty-fourth Amendment was State, voting, to it comes is when eliminate,” al- to and the state had other qualifications,” fix power limited to the to to were ternatives establish that voters imposition poll taxes fell and that the residents, including “registration, use of “[w]ealth, this like power outside because sanction, criminal purging registra- race, creed, color, germane is to or not lists, challenges and Id. tion oaths.” [and] ability intelligently in participate to 541-43, one’s Accordingly, at 1177. S.Ct. 668, Id. at 86 S.Ct. process.” the electoral it was Court concluded that “constrained poll the state’s tax made requirement imposed 1079. Because to hold that signature early identity com- do elector verified who use an ballot vote Voters alone). not identification. Ariz. parison even have show ballots, (for 16-550(A) early § Rev.Stat. an ground affluence of voter electoral stan- the “new law substantially dard, and such a standard is irrelevant to right burden[ed] vote in violation permissible qualifications, voter the Court Fourteenth Amendment.” Id. at invidiously that the tax was Although concluded dis- 128 S.Ct. 1610. the Court was criminatory per and a se violation of the agree unable to on the up rationale for req 666-67, Equal Protection at 86 holding photo Clause. Id. Indiana’s identification S.Ct. 1079. uirement,38 neither opinion the lead nor that Harper’s concurrence held se per Proposition polling place provision 200’s 203-04, applied. rule See id. 128 S.Ct. of Harper’s falls outside rule that “restric- opinion, 1610. The lead upon which ITCA right on if tions to vote are invidious relies, explained Harper’s “litmus they are unrelated voter qualifications.” test” made “even rational on restrictions Crawford, 553 U.S. at 128 S.Ct. 1610 right the vote ... to if they invidious are (Stevens, J., announcing judgment the of unrelated to voter qualifications.” at Id. Court). Requiring the provide voters to 189-90, 128 S.Ct. 1610. But to according identity documents their an proving is not opinion, the lead later election cases had invidious based impermis- classification on away moved from Harper to apply a bal affluence, of sible standards wealth or even ancing to state-imposed test burdens on if to pay some individuals have to obtain voting process. the Id. Under these later contrary, the documents. On the a such cases, a court identify “must and evaluate requirement falls within squarely the put the by interests forward the as State power state’s to fix core qualifica- voter justifications for the imposed burden by its Nevertheless, argues tions. ITCA that rule, and then make the judgment’ ‘hard the Court’s more in recent decision Craw- adversary that our system 181, 1610, demands.” Id. ford, 553 U.S. 128 S.Ct. extend- 190, at 128 S.Ct. 1610. The lead opinion Harper’s holding ed that an electoral stan- proceeded then to apply balancing this based on voter test invidiously dard affluence is (and to photo the Indiana identification discriminatory per require thus a se violation Clause) 191-200, 128 ment. Id. at Equal of the to S.Ct. 1610. Be Protection encom- fees, pass cause did not Harper’s indirect such as fees or extend costs Crawford se necessary per rule to imposed to obtain other burdens on identification docu- voters, it support ments. does not ITCA’s argu Proposition ment that 200’s identification ITCA’s argument is based on a misread- requirement per is se invalid. ing of involved an Crawford. Crawford Indiana requirement Although state that a citizen ITCA’s reliance on Crawford voting person in or clear, at the office of entirely is not ITCA does not appear circuit court day clerk before pres- argue election to Proposition that polling 200’s photo a by ent identification place provision card issued is invalid under Crawford’s government. 185, at Id. 128 balancing S.Ct. an argument test. Such would provide 1610. The state would a pho- free be in unavailing any event. The lead opin- to to “qualified identification to voters able ion in held the burden im- Crawford establish their residence identity.” and Id. on posed citizens who must obtain a photo 186, at 128 S.Ct. 1610. A plain- of number identification document was not sufficient- challenged requirement ly tiffs this on heavy support facial a attack on the opinion 38. The by curring joined by lead authored Justice opinion Ste- Justices Thomas joined by Souter, vens was Ginsburg, Chief Justice Roberts and and Alito. Justices and Kennedy. Breyer Justice Justice Scalia filed a con- dissented. 410 law, IV light in of state

constitutionality of the deterring legitimate interests state’s sovereignty, which system of dual Our fraud, modernizing detecting voter and governments state federal gives the vot- safeguarding procedures, and election their, sepa- authority operate within 191, 202-03, 128 Id. at confidence. er appli- reasoning same Constitution’s rate “is one spheres, S.Ct. 1610. noted opinion the lead cable here. While protections liberty.” Printz structural pro- were photo cards identification States, 898, 921, U.S. v. United 521. Indiana, recog- also it free vided for (1997). L.Ed.2d “Just S.Ct. cards, pro- these free nized that obtain separation independence of the least “present voters needed spective Federal Gov- branches of the coordinate document, can a which be ‘primary’ one prevent accumulation ernment serve to certificate, naturaliza- certificate of birth branch, any one power of excessive identification, tion, photo veterans U.S. healthy power balance of between the identification, military or a U.S. photo U.S. will States and the Federal Government Id. at 198 n. 128 S.Ct. passport.” and abuse from tyranny reduce the risk documents, the primary Obtaining these (internal quotation front.” Id. either re- acknowledged, may Supreme Court omitted). for Despite respect our Prop- marks a fee. Id. Because quire payment of polling provision allows place sovereign osition 200’s its author- the state’s exercise of pri- present these same sorts of voters however, ity, text re- Constitution’s documents, mary Proposition 200 is no safeguard specific enu- quires us to more than identification burdensome powers that are bestowed on the merated has in Nor requirement upheld Crawford. government. authority grant- federal any why Arizona’s suggested ITCA reason Congress ed to under the Elections Clause imposing photo in identification interests regulating alter” law to “make or state than requirement weighty less would be elections is one procedures federal in the state interests at issue Crawford. power. The Framers of the Consti- such Therefore, test balancing under the even authority tution clear that states’ were opinion, in we set forth lead Crawford’s extends regulate federal elections Proposition polling uphold 200’s would Congress so far as declines intervene. against a requirement place identification Const, 4, 1; Foster, § art. cl. See U.S. challenge. facial 464. Given the 522 U.S. S.Ct. sum, any payment In associated because delegated to Con- paramount authority required un- obtaining the documents with Clause, we conclude gress by Elections place provi- Proposition polling der 200’s Proposition supersedes the NVRA legitimate to the is related state’s sion requirement conflicting registration 200’s eligibility in assessing interest voters, elections, § identifi- 16- qualifications photo for federal Ariz.Rev.Stat. not an invidious re- requirement cation is 166(F). Proposition poll- 200’s uphold We Harper, and the striction under burden oth- ing place provision respect with to all such, the under As minimal Crawford. er claims.39 polling place provision does not violate part AFFIRMED and REVERSED Amendment’s Equal Protec- Fourteenth part. tion Clause. appeal. party own costs on

39. Each shall bear its

APPENDIX A

APPENDIX B exclusively. KOZINSKI, concurring: narrowly use” or Judge cept and Chief give a broad phrase But if we were perplexing a I find this difficult and construction, states could “ac- or inclusive statutory we must language case. The while also cept and use” the federal form readily interpre- to the apply susceptible registrants documen- requiring provide majority, that of the tation of the but also confirming form. This tation what’s and use” “accept For state to dissent. superflu- render federal form wouldn’t it must form mean that the federal could ous, braking systems on just as redundant a complete registration the form as employ secondary power supplies on com- cars and materi- to the exclusion of other package, superfluous. This is known puters aren’t wearing suspen- “ac- a belt and phrase colloquially This would als. construe 440

ders, widely safeguard voting irregularities and is used to in Illinois for John F. (i.e., against systems Kennedy’s 1960, failure get- of critical election as President in down). in Lyndon Texas for ting caught your pants with Johnson’s elec- See tion to the in Senate 1948. States have an Redundancy (engineering), Wikipedia, (last 2012). ensuring interest in that 9, reputations their http://goo.gl/ce8il visited Jan. decades, aren’t soiled in this fashion for different, embody The two constructions maybe longer. The risk of fraud and oth- antithetical, policies. and somewhat may er depend malfeasance on local condi- narrow construction maximizes federal tions and thus differ from state to state. uniformity control and national at the ex- States with a tradition of electoral chican- pense autonomy of state and local control. ery, large or with transient populations, The broad construction defers to state and may impose need to stricter controls to sacrificing local interests while national ensure integrity voting the of their pro- uniformity. matter, linguistic As a neither cesses. “accept construction of and use” strikes The fact remains that Supreme the superior. me as any Court has never articulated doctrine If Congress had it made clear that giving deference to the states under the accept states must the federal form as a may Elections Clause. This be because it complete application, they or that need hasn’t had occasion to do so in modern not, I cheerfully would enforce either com- Love, 67, times. Foster v. 522 U.S. Congress mand. But tantalizingly used (1997), S.Ct. 139 L.Ed.2d 369 was an vague language, very which would it make easy case where the state’s election useful fall back on a rule of construc- directly scheme contradicted the constitu- tion, such as the Clear Statement Rule or text, tional while the state’s interest in Presumption the Against Preemption. avoiding general a election on the same Judge however, right, Ikuta is the day as the country rest of the was slight. Supreme Court adopted has so far such ours, A case such statutory where the only Supremacy cases, rules for Clause not language is unclear and the state has for arising those under the Elections compelling in avoiding interest fraudulent maj. op. Clause. See at 391-93. voting by large numbers unqualified would, believe, There I justifi- be ample electors, presents a far more suitable case cation for adopting such rules for Elections deciding whether we should defer to preemption. Clause While the federal state interests. But Supreme government has an interest how elec- adopt Court can such a doctrine. tions conducted, for federal office are better, In the of something absence I states are bystanders. not disinterested secondary must resort to aids to construc- Federal elections rep- determine who will case, tion. In legislative this we have his- resent the state and its citizens in Con- tory supports reading “accept and gress, and, indirectly, White House sense, use” in the exclusive which would federal Making courts. sure that those preclude states from seeking additional representatives are chosen the state’s documentation. Senator Simpson pro- qualified electors is of significance vital to posed amending the that eventually bill people. Moreover, state and its provide became the NVRA to that “[n]oth- government federal is commandeering ing in this Act shall be pre- construed to resources, state’s giving signifi- states a clude a State from requiring presentation cant stake in ensuring that process is of documentary evidence of citizenship efficiently conducted fairly. Rightly applicant of an registration.” for voter (or credit) wrongly, many (Mar. or 1993). still blame Cong. Rec. 5098 He (1993), 103-66, reprinted allows No. at 23-24 his “It States to explained purpose: 140,148-49 verify citizenship.... (Conf.Rep.). to 1993 check documents U.S.C.C.A.N. this bill rejected clear that must simply Simpson makes The conferees thus the [I]t any particular interpreted stop amendment, to they thought not be not because it (as in- requiring Ford) from documents. This superfluous State did Senator but be- currently law which State cludes States meaning “accept cause the inclusive and of documents, well as who as those check of use” was inconsistent with their vision in the fu- may wish to check documents operate. the how Act should to try I offer amendment to my ture .... conference, After re- the the Senate will continue to have that States ensure without passed Simpson the NVRA the wish, require if to docu- right, they the 103-6, S.Rep. No. amendment. at 12-13 ” verifying citizenship.... at ments Id. (1993). minority opposed A of senators Simpson Senator understood 5098-99. they part thought the bill in because “re- be “accept and use” could read nar- that proof citizenship” quiring help- of would be from rowly preclude seeking to states doc- ful in and combating fraud worried that form, beyond umentation the federal and preclude the bill “would such corrective ensure his amendment to that the offered action.” Id. at 50. broad, in the would be construed phrase House, In the some sought members to sense. inclusive recommit the bill in order tack on a to Ford, sponsor, the NVRA’s re- Senator Simpson-like They argued amendment. nothing in is the bill sponded: “[T]here that to so encourage failure do would voter the re- preclude now that would State’s Cong. (May fraud. Rec. See 139 at 9228 presentation documentary evi- quiring 1993) Livingson: pro- (Rep. “Without this basically I think this citizenship. dence of vision, bill.”); this bill is an id. auto-fraudo redundant, you probably though even is “Despite at 9229 (Rep. benign Cox: its is nothing it in a section. But there put name, bill it pernicious this would make it.” preclude now that Id. at there would nearly impossible prevent ineligible peo- to Ford seemed believe 5099. Senator illegal aliens—from vot- ple including — already “accept being was that and use” fell ing.”). arguments Their on deaf ears. sense, and used in the inclusive was ame- at Id. adding that language nable to would con- The has time Supreme Court warned us firm this. again rely legislative history and not to on adopted Simpson The Senate the statutes, interpreting largely because amendment, but the House bill lacked a ease floor the with which statements provision. similar Conference Com- reports manipulated can be committee version, adopted explain- mittee the House create a impression false as to what agree ing “[t]he that conferees with body history as a whole meant. But the include provi- House bill do not this by legislative here consists of actions taken from the amendment. It is sion Senate bodies, just penned by not words staffers necessary pur- not or consistent with the lobbyists. or recognized The Court has Furthermore, of this poses Act. there history that inter- drafting such can offer interpreted by it concern could be “Congress’ of the pretive insight: rejection requirements permit registration States very that would achieved language have eliminate, or effectively that could serious- urges the result the Government here with, ly registration mail pro- interfere weighs heavily against the Government’s adversely also gram of Act. It could interpretation.” Rumsfeld, Hamdan v. reg- of the affect administration other 557, 579-80, U.S. 126 165 S.Ct. programs well.... istration as These con- 723'(2006). dissenting L.Ed.2d While the cerns lead conferees conclude that objected use of H.R.Rep. be deleted.” Justices in Hamdan to the this section should history, objection legislative their rested in vote on account of race or color” in viola- 2(a) large VRA, § on the fact that it part being was tion of U.S.C. 1973(a), statutory language. § used to defeat clear court holds 665-68, (Scalia, J., See id. 126 S.Ct. 2749 current record is insufficient to show joined by Alito, dissenting, Thomas and challenged “causal connection between the JJ.). they object I’m not convinced would voting practice prohibited and [a] discrimi- where, here, equal vigor result,” natory with the statu- Project Smith v. Salt River Dist., in tory language equipoise Agrie. is and both Improvement & Power 109 (9th affirmatively rejected 586, Cir.1997) (alteration chambers efforts to F.3d 595 in (internal precisely authorize what Arizona is seek- original) quotation marks omit- ted). ing to do. I concur in Section III.A of the majority opinion with that understanding mistakenly The dissent sees some incon- of its A limited reach. different in record sistency my today between conclusion and a future case produce could a different my that in “well-drafted dissent to the regard § outcome with 2 the causation original panel opinion.” Dissent at 450 question. But, n.l. as a member of a three-judge I panel, had no occasion to construe the PREGERSON, Judge, Circuit by statute de novo because we were bound concurring part in dissenting part: and in the law of the circuit and the law of the agree I Arizona, majority with the that 1162, Proposi- case. Gonzalez v. 624 F.3d (9th Cir.2010) registration provision tion 200’s (Kozinski, C.J., violates 1198-99 dis- the National Voter senting large Registration in Act part). To the extent I (“NVRA”). Maj. all, Op. See at I part could reach the at 403. issue it was ways however, with majority, the determine whether I when it clearly “Gonzalez comes to wrong.” Proposition requirement 200’s Id. at 1208. I Because concluded then, now, provide I voters do identification at the “both preemptive (“the polls polling place provision”). non-preemptive constructions of ‘ac- majority cept’ concludes that plausible,” and ‘use’ are I Gonzalez’s chal- deferred to lenge to polling place provision panel’s the earlier under construction. Id. at Section 2 of the court, Voting Rights 1206. an Act As en banc fails we cannot Rather, defer because Gonzalez has not to Gonzalez I. established that must come we polling place up provision with what in we think is “results dis- the best construc- Maj. tion crimination on account of Op. of the statute. race.” For the reasons out- above, I respectfully lined disagree in with the Judge those Ikuta’s majority, very for two reasons. thorough fine and opinion, I believe the preemptive reading of the statute is First, in concluding that Proposition somewhat better than the alternative. polling place provision 200’s does not dis- parately voters, impact Latino majori- BERZON, Judge, Circuit concurring, ty conflates statistics on Proposition 200’s MURGUIA, with whom Judge, Circuit registration provision with Proposition joins: polling 200’s place provision. Maj. See fully I majority concur in the opinion but Op. at 405-06. A thorough review the note following: respect With to wheth- record Proposition reveals that poll- 200’s er Proposition 200’s polling place provision ing place provision significant has a dis- in “results a denial abridgement or proportionate impact on Latino In voters. right any citizen election, of the United general States the 2006 Latino voters Indeed, court as the district recounted and 4.2% of 2.6% comprised between vote, detail, Latino jure but de discrimination out to in much who turned voters that went of the ballots 10.3% during voters cast Latinos Arizona existed against identifi- of insufficient uncounted because century. prior Just most of the twentieth overrepresent- were Latino voters cation. 1910, passed literacy Arizona voters a were in ballots that to 500% ed 200% targeted Mexicans and explicitly law that identifi- of insufficient uncounted because non-English speakers from disqualified cation. As late as the voting in state elections. Second, mistakenly gives majority 1960s, literacy requirements were these Factors” from to the “Senate short shrift voting in Arizona. precondition for 30, 44, 106 U.S. Thornburg Gingles, v. Arizona attained statehood After (1986).1 In dis L.Ed.2d 25 S.Ct. government engaged new state factors, majority ac cussing these anti-immigrant campaign in an character- have “suf that Latino voters knowledges at proposals ized a series of aimed in Arizona history of discrimination fered a political rights the of Mexican restricting in ability to participate their that hindered their immigrants’ limiting right and fully, that there were process political the The new Arizona constitution re- Latinos work. between disparities socioeconomic Arizona, working pub- Arizona from on in and that stricted non-citizens and whites degree racially of legisla- to have some In the Arizona projects. continues lic Maj. De voting.” Op. law,” 406. polarized “eighty percent ture enacted the facts, the ma acknowledging these spite of the eighty percent stated that which Proposition 200’s concludes that jority that or employees in businesses had five “in does not result place provision polling had to be “native-born employees more Maj. account of race.” on discrimination the States.” citizens of United analy 2 proper But a Section Op. at 405. in housing of Latinos and Segregation how the that we “consider requires sis was also common public accommodations with social practice ‘interacts challenged ” during most of the twentieth in Arizona an in to cause conditions’ and historical years immediately follow- century. In the vot opportunities in of Latino equality the II, city the of Phoenix ing World War Farrakhan v. cast their ballots. ers to separate in segregated Latino veterans (9th 1009, 1016 Cir. Washington, 338 F.3d theaters, Movie restau- housing units. 2003) U.S. at 106 (quoting Gingles, 2752). rants, Lati- frequently stores excluded and S.Ct. districts, majority large vote ally election Gingles Supreme Court held that a In factors, against prohibitions bul- following requirements, and consider court should commonly voting; to as the "Senate Fac- of of the referred let the exclusion members tors,” determining plaintiff pro- has group slating in whether minority from candidate cesses; of Section minority group established a violation to which the extent Voting Rights Act: past discrimi- members bear the effects education, employ- such as nation in areas voting-related histoiy of discrimina- [T]he health, ment, ability their and which hinder subdivision; political the State or tion in political pro- participate effectively in the voting in the elections extent to which cess; ap- the use of overt or subtle racial political is ra- subdivision of the State or political campaigns; and the extent peals in cially polarized; the extent to which minority group members of to which political has used vot- State or subdivision public in the elected to office have been procedures tend to ing practices or that jurisdiction. opportunity for discrimination enhance the 44-45, 106 S.Ct. 2752. Gingles, 478 U.S. at minority group, as unusu- against the such segregat- in I required respectfully nos or Latinos to sit dissent from the balance parks swimming areas. Public majority opinion, ed of the because I am not A pools segregated. particularly were also persuaded that application Proposition segregation of this oc- example notorious proof-of-citizenship provision 200’s pro- Tempe, in were curred where Latinos spective using voters the National Mail permitted public swimming pool to use the (the Registration Voter Form Federal day pool before the was drained. Form) precluded by Voting the National (NVRA). view, Rights my Act In there is view, showing my

In statistics that no conflict between the NVRA and Ari- Proposition polling place provision 200’s proof-of-citizenship requirement. zona’s voters, disparately impact Latino when fact, plain In text of the NVRA vali- long history Arizona’s of dis- coupled with dates Arizona’s proof-of-citizenship re- Latinos, against crimination current socio- quirement, even while recognizing that disparities economic between Latinos and Arizona, “accept Arizona must and use” the racially polarized whites in Federal Arizona, voting Proposi- Form. establish polling place tion 200’s provision results The text of the Ari- NVRA allows for discrimination on account of race. zona’s proof-of-citizenship requirement, History has also shown when a notwithstanding presumption whether a approaches polling place Latino voter against preemption generally exists under stopped by person perceived

but is a to be Clause, the Election as it does under the authority figure checking an for identifica- Supremacy Clause. The NVRA states the tion, there’s something intimidating about following: experience that that evokes fear of dis- In accepting using addition to and the crimination. This intimidation has the ef- Form], may [Federal a develop State keeping fect of away Latino voters from and use a mail registration voter form polls. that all meets of the criteria stated in sum, In I Proposition would hold that 1973gg-7(b) section of this title for the polling place 200’s provision results in dis- registration of voters in elections for race, crimination on account of in violation Federal office. 2 Voting of Section of the Rights Act. Therefore, § 42 U.S.C. 1973gg-4(a)(2). RAWLINSON, joined Judge, Circuit plain text of the NVRA authorizes a SMITH, Judge concurring N.R. in part “develop state to and use a mail voter dissenting part: and in registration form ... for registration I majority’s concur in the office,” conclusion of voters in elections for Federal in 200, Proposition that Arizona’s which addition to the Federal Form if it “meets § amended Ariz.Rev.Stat. 16-579 to re- all of the criteria stated in section 1973gg- 7(b).” quire proof prior criteria, of identification to receiv- part As of such the NVRA ballot, ing a does Voting provides not violate the a registration that mail voter Rights Act Equal or the Protection “may require only Clause form identifying such of the Fourteenth Amendment. I also ... necessary information as is to enable agree that the statutory amendment appropriate did the State election official to poll not constitute a tax proscribed as the eligibility applicant assess of the ...” Twenty-fourth § Amendment 1973gg-7(b)(l) (emphasis to the U.S.C. add- ed). result, United States Constitution. As a I 1973gg-7(b)(2) specifies Section then join Part III majority opinion. of the citizenship necessary that is a eligibility 1973gg-7(b), require §in to addition- Thus, forth expressly the NVRA requirement. outside of the Federal Form eligibili- of al information require proof to Arizona allows “it citizenship, because I do not know how registration. for voter proof as ty, such necessary information ... to clearly emphatically and stress the identifying to more is official to election plain the ... State text of the statute point enable that and accepts and Arizona eligibility,” require proof-of-citizen- assess allows Arizona 42 U.S.C. Federal Form. See uses office. ship in elections for federal 1973gg-7(b)(1). § majority argues that the NVRA The point that the NVRA emphasize I require- preempts proof-of-citizenship merely implicitly, au- not expressly, itself ment, requirement because the NVRA’s and use” its “develop thorizes a state and use” the Federal Form “accept that “ “ registration of voters form ‘for the own requirement to ‘re- Proposition and 200’s office,’ in addition for Federal in elections that ject any application registration is using the accepting [Federal and satisfactory accompanied by not evidence 1973gg-4(a)(2). § Be- 42 U.S.C. Form].” ... citizenship’ do not of United States accept and use the a must cause state harmoniously....” Majority operate author- expressly is also Federal Form but (citing Ariz.Rev.Stat. Opinion, p. 398 use its own form develop ized 16-166(F)). majority rejects § Ari- § 1973gg-7(b), the criteria meets that the statutes are har- argument zona’s a minimum standard text creates plain monious, accepting because Arizona is Form and allows the Federal through registra- Form for voter using the Federal it is within long more as require state to long citizenship tion as as evidence § See Hui v. 1973gg-7(b). the bounds provided pursuant to the state form re- — Castaneda, U.S.-, 130 S.Ct. major- See id. at 398-99. The quirement. (“We (2010) are L.Ed.2d 703 ity rejecting registra- voter reasons however, to read the statute ac- required, anything outside the Federal tion based on ”); Arkansas v. text.... cording to its it inappropriate is because “is con- Form Ark, 520 Cent. U.S. Farm Credit Servs. of pur- intended use and trary to the form’s 1776, 821, 827, L.Ed.2d 117 138 34 S.Ct. Further, majority the Id. at 399. pose.” (1997) principle that it is a “basic (noting reading its is consistent with opines that is to be enforced statutory language that Id. at reading the “natural of the NVRA.” terms”). state according to its While disagree. I general the same comply must with forms in- trump of the statute The terms Form, there is no as the Federal standards of the Federal purpose tended use and only the that states must use mandate States, 546 Lockhart v. United Form. See Form included in the Federal information 699, 142, 146, 126 S.Ct. 163 L.Ed.2d U.S. complete Form is a that the Federal or (2005) (“The Congress may 557 fact § 1973gg- 42 U.S.C. application. See consequences all of the not have foreseen 4(a)(2). to have the same discretion States statutory is not a sufficient of a enactment they devel- contents of the form decide the to refusing give to effect its reason use, in accordance when drafted op and (citation omitted); see plain meaning.”) 1973gg-7(b), § as the Election Assis- with 755, Davis, F.3d 758 (EAC) Siripongs v. 282 also the Fed- had for tance Commission (“In (9th Cir.2002) the statute interpreting requirements. See U.S.C. eral Form’s statutory Thus, general principles we look to 1973gg-7(b). §§ 1973gg-4(a)(2), language state, begin and with as construction authorizes a expressly statute “language is itself.” If the set of the statute with the standards long complies as it face, clear on its the sole function of a while the in baseline criteria according § court is to enforce it to its 1973gg-7(b) act as outer limits. terms(citation, alteration and inter- requirement The to “accept and use” the omitted). Further, nal quotation marks preclude Federal Form does not states “accept and provisions use” of the imposing from requirements. additional NVRA do not establish a conflict between Accepting using something and does not Proposition 200 and the NVRA where one necessarily mean that it is sufficient. For present is not otherwise in the text of the example, may accept merchants and use Reading requirement statutes. to “ac- cards, credit production but a customer’s cept and use” the Federal Form of a credit card in may and of itself not be § § 1978gg-4(a)(l) along with 1973gg- sufficient. The sign customer must and 4(a)(2) naturally does not lead to con- may provide photo have to identification to clusion that requirement no outside the verify eligible that the customer is to use Federal Form may reg- disallow a voter’s Second, the credit card. ordinary istration. importance relevance and The meaning natural of the word “use” is “to § 1973gg-4(a)(2) paramount. Invali- employ” or “derive service from ... ”. dating registration provision ignores States, 223, Smith v. United 508 U.S. 228- § 1973gg-4(a)(2), which qualifies the ex- 2050, (1993) 113 S.Ct. 124 L.Ed.2d 138 tent depend to which a state must on the (citation omitted). “accepts” The word Federal Form for federal voter registra- means adopt, agree “to to carry to out i.e., the Federal Form is not the tion — provisions, keep and retain.” Worden v. exclusive form. Banks, Inc., SunTrust 549 F.3d majority § 1973gg- seems to read (4th Cir.2008) (citing Black’s Law Dictio- 4(a)(2) way in such a as to acknowledge a (5th ed.1979)). nary 12 It is undisputed right develop state’s and use its own employed Arizona. has and derived (if § form compliant with 1973gg-7(b)), but service from the Federal Form and opining the same time that a state form adopted its use for the registration of vot- cannot require anything more than the ers in federal elections. The real does, Federal Form or cause a voter to be issue is Proposition whether require- 200’s ineligible register vote federal proof ment of citizenship so conflicts However, elections. logical more with the use of the Federal Form that the appropriate reading is that the Federal requirement proof of citizenship should Form acts as the setting mini- default — be voided. mum requirements a may state re- —and I realize that majority’s argument quire requirements additional for federal that “rejecting” necessarily counters “ac- through elections its own form if the re- cepting” has quirements superficial some comply appeal. See with the criteria of the Majority However, Opinion, p. (essentially statute what setting the maximum is being decided is requirements available states must may be used in whether form). accept the state and use the See La. Federal Form in their Pub. Serv. F.C.C., Comm’n federal 355, 370, procedures whole, v. 476 election a U.S. 106 or (1986) they S.Ct. 90 whether accept L.Ed.2d 369 must the Federal (“[Wjhere possible, provisions completely Form as a statute sufficient and the sole should be requirement read so as not Thus, to create a con- for voter registration. ...”). Therefore, flict. flexibility point there is of contention is whether Arizona coupled through with control the standards defies the accept demand to and use the §in 1973gg-7(b). The Federal Form acts Federal Form finding regis- not voter

447 solely applicants ‘accept on and to and use’ it for the wholly based tration sufficient Majority answer cannot be registration Opinion, Federal Form. The of voters.” added). Federal Form is the end-all-be-all. (emphasis language that the 400 The p. clarifies that “ac- 1973gg-4(a)(2) Section prohibit the statute not does not addi- that a state and use” cannot mean cept requirements, it tional documentation ex- solely on the register a voter to must allow pressly “require states to ... such permits Form, spe- it Federal because basis of the necessary ... as identifying information is develop a to and use a cifically allows state appropriate to State election enable form, Federal addition to the state eligibility appli- official to assess the of the Form, beyond elections. It is for federal 1973gg-7(b)(l). § ...” 42 cant U.S.C. understanding how the Federal Form my If, believes, majority require- as the “the end” when the can be considered accept ment to and use the Federal Form develop states to explicitly allows NVRA express allowance for a state to and accepting to a form addition “[i]n and use develop complies and use a form that with 42 U.S.C. using [Federal Form].” and added). the set criteria of the statute are contra- 1973gg-4(a)(2) (emphasis § dictory, Majority Opinion, pp. see 398- expressly of the provision No NVRA 401,. interpret then the court “must requiring from additional forbids states give provisions effect to both statute verify a voter’s identifying documents DeStefano, possible.” where See Ricci v. only expressly pro- eligibility. NVRA 2658, 2674, 557 129 174 U.S. S.Ct. “notarization requiring hibits states from (2009) (citation omitted). L.Ed.2d 490 42 formal authentication.” or other U.S.C. Here, necessary it and to inter- possible ... read the enu- 1973gg 7(b)(3). § “We — ac- pret requiring the statute as states to case to exclude another meration of one Form, cept and use the Federal while al- suppose Congress it is fair [if] lowing states to demand adherence to their possibility the unnamed considered requirements to it----” Barnhart v. say specific meant no form and federal Co., 149, 168, 123 Peabody registration compliance Coal U.S. if in with voter (2003) (citation 748, 154 L.Ed.2d 653 S.Ct. § 1973gg-7(b). omitted). Here, re- Congress prohibited Reading the statute as whole solidifies notarization or other formal au- quiring my registration that Arizona’s conclusion prohibit proof-of- but failed to thentication v. You provision is valid. See Samantar expressly recognizing its citizenship, while - -, 2278, 2289, suf, U.S. 130 S.Ct. importance registration. in voter See (2010) (“We ... 176 L.Ed.2d 1047 do not 1973gg-7(b); § see also Kucana v. U.S.C. isolation; statutory phrases in we — construe

Holder, U.S.-, 827, 838, 130 S.Ct. (citation read statutes as a whole.” (“Where (2010) Congress L.Ed.2d 694 also, omitted)); K alteration see Mart particular language includes one section Cartier, Inc., 281, 291, Corp. 486 U.S. v. it in another section of a statute but omits (1988) (“In 1811, 100L.Ed.2d 313 108 S.Ct. Act, generally presumed it is same plain meaning of the stat ascertaining the intentionally pur- acts and Congress that ute, particular the court must look to the disparate in the inclusion or exclu- posely issue, omitted)). statutory as well as the (alteration language citation sion.” and design of the statute as a language and it is the does the NVRA state that Nor omitted). whole....”) (citation Besides authority eligibility verifica- exclusive on for a state to express authorization only that “Arizona’s role was to tion or compliant a form with “develop available to and use” [F]orm make [the Federal] criteria, complying § with the statute’s criteria for 1973gg- 42 U.S.C. the statute’s 4(a)(2), that “each provides the NVRA also federal elections. procedures register shall establish State that, majority also even if The asserts Federal office ... to vote in elections for allows a state form to include NVRA (2) pursuant to section application mail parame- conditions within the additional title, ... in addition to 1973gg-4 of this (like § 1973gg-7(b) proof-of-citi- ters of registration voter any other method of an zenship), may ap- a state not decline law,” id.

provided under State for plicant’s registration voter federal added). Al- 1973gg-2(a) (emphasis § applicant’s elections because of the failure requires that “ac- though the NVRA states satisfy the additional conditions. See Form, the Federal id. cept and use” Opinion, Accord- Majority pp. 398-400. § does not fore- 1973gg-4(a)(2), NVRA majority, ing to the methods for using close states from other voters, § 1973gg-2(a), and registering id. provision, Form [t]he NVRA’s State spe- state develop allows states to and use merely gives § a state 1973gg-4(a)(2), forms, cific if those forms fit within set Congress could have options [and] more Therefore, criteria, § 1973gg-4(a)(2). id. required only all states to use the Fed- Congress did not “assume exclusive .con- Instead, Congress eral Form ... al- ” subject.... trol of the whole Ex Parte registra- lowed to use their state States Siebold, 371, 383, 25 L.Ed. 717 U.S. register applicants tion forms to for both (1879) (emphasis original). in the Arizona (provided state and federal elections require proof citizenship is allowed to § complies 1973gg-7(b)). state form with registration for federal voter because of its reject applicants But states cannot who expressly granted authority develop register for federal elections who use § complying 1973gg-7(b), use a form with Majority Opin- Form.... the Federal may deny registration and Arizona voter ion, pp. (emphasis by 398-400 the ma- proof. for federal office for lack of such omitted). jorityXfootnote reference (“[W]e See id. at 392 think it clear that the relating Again, majority’s attempt clause of the Constitution to the to rebut regulation contemplates of such elections arguments Arizona’s and this dissent con- cooperation Congress such whenever language tradicts the of the NVRA and it expedient merely deems to interfere to leads to an absurd result. Under the ma- existing regulations alter or add to of the (and jority’s argument, the state form State____”). additional in the state conditions allowed form) effect, ap- no real because the have that, majority if may develop State and use a mail voter ignores specific language conclusion the of § registration form that meets all of the 1973gg-4(a)(2). language That allows develop 1973gg-7(b) states to and use a state in section of form criteria stated 2191, 2200, in 176 L.Ed.2d 967 registration of voters 130 S.Ct. this title for the (2010), view, majority’s ignoring Federal office.” U.S.C. the the elections added). NVRA, (emphasis plain meaning Put of the cannot be 1973gg-4(a)(2) § view, majority’s Congress especial- a what intended. This is differently, under the ly that meets all the true when one “registration form considers the statu- state 1973gg-7(b)” tory in but for a form criteria stated section allowance state does not displace importance condition be- the of the includes an additional Federal requirements may delegated authority Form Form or the yond the Federal the register “voters in elections to determine the of not be used to EAC contents the office,”although the state form The for Federal Federal Form. Federal Form main- language in specifically importance, is allowed tains its because its use is Form, 1973gg-4(a)(2). required § all states. The Federal therefore, establishes a minimum set of addition, majority In believes that requirements. rejection The EAC’s of § my interpretation 1973gg-4(a)(2) of sub- request proof-of- Arizona’s a include “instead of’ for addition to.” “[i]n stitutes requirement citizenship demonstrates that However, my Majority Opinion, p. 399. purpose establishing the EAC served its of loyal wording to the interpretation “[i]n is (not maximum) a minimum set of re- to,” Form addition because the Federal Then, quirements for all states. states form requirements must be met. State individually are impose allowed to addi- §by 1973-gg- constrained requirements, tional requirements within the strict 7(b), Form are added to the Federal re- § 1973gg-7(b). bounds of contrast, majority’s quirements. In basically 1973gg-4(a)(2) §of strikes view majority proof-of- The believes that the forms to allowing the statute’s text state citizenship requirement disrupts goal addition to” the Federal be used “[i]n registra- of the streamline the NVRA—to registration Form “for the of voters process. Majority Opinion, pp. tion See office.” elections for Federal Although 400-01. NVRA seeks to regis simplify registration proce- voter and harmonize majority’s view makes dures, “pro- For exam the statute also identifies tration burdensome for states. tecting] pro- ple, applicant meeting integrity an Arizona the Fed the electoral lacking proof- “enhancing] participation Form but cess” and requirements, eral eligible allowed citizens as voters in elections for of-citizenship, would have to be guiding purposes of the vote for federal officials but could not vote Federal office” § 1973gg(b) (emphasis that desire a statute. 42 for state officials. States U.S.C. added). requirement majority’s in their Even under the com- proof-of-citizenship (as majority suggests plementary analysis pursuant conducted state forms NVRA), Love, 67, by the would be forced to Siebold and Foster v. 522 U.S. allowed 464, (1997), regis track whether their residents are 118 S.Ct. 139 L.Ed:2d 369 see elections, Majority p. proof- Arizona’s Opinion, tered to vote for federal state elections, essence, majori of-citizenship procedure complements— In or both. impor- an rather than conflicts with—these ty’s imposes alteration of the statute Siebold, purposes. Al tant See 100 U.S. at unnecessary burden on the states. 384; Foster, assess the 522 U.S. at 118 S.Ct. 464 though “it is not our task to that a state election law is approach adopt (holding of each consequences mischief[,]” it preempted only “to extent produces [the] [that] one that the least — law”). Chi, Ill, U.S.-, conflicts with federal The stated City Lewis v. 450 ”); if purposes

harmonious are not served ine- ed.... v. Kennedy, United States of. ligible register. (9th Cir.2011) voters are allowed to 1251, (Ikuta, 643 F.3d 1266 J.) (determining that a compensat- statute Finally, though allowing even states to ing pornography victims of child was (if “a “develop and use” their own forms com- poor types offenses[,]” fit for these of but may § pliant 1973gg-7(b)) with decrease Form, efficiency acknowledging responsibility that “the poli- the of a Federal this lies cy courts, consideration cannot overrule the Congress, ex- with not the to develop a press terms of the DePierre v. statute. to scheme ensure that defendants ... are — States, -, United U.S. 131 ...”). S.Ct. held liable (2011) 2233, (“That 2225, 180 L.Ed.2d 114 sum, In majority’s holding hinges the on may legislative drafting, we rue inartful § 1973gg-4(a)(l)’s requirement that states however, does not excuse us from the re- “accept and use” the Federal Form. How- sponsibility construing of a statute as ever, § 1973gg-4(a)(2) also allows a state faithfully possible as its actual to “develop and use” its own form if it text....”) (footnote omitted); reference complies with the standards in delineated Lewis, (“Truth tell, 130 S.Ct. at 2200 Therefore, § 1973gg-7(b). it is difficult to however, readings both of pro- the statute maintain that registration provi- Arizona’s events, puzzling duce results.... In all it squarely sion conflicts with the NVRA or is not our task to consequences assess the that the NVRA exclusive con- approach “assume[s] of each adopt the one that Siehold, produces subject....” the least trol of the whole charge mischief. Our is 100 to give effect to the law Congress enact- U.S. at in (emphasis original).1 383 Judge problem 1. Chief majority's Kozinski describes the NVRAas with single view via a "readily susceptible question: interpretation permits to the "[I]f the statute zero devia- form, majority, but also that tion why permit dissent....” from the federal states Concurring Opinion, p. develop only their His well-drafted forms all? The devel- original opinion opment panel photocopying dissent to the needed would be said it (Gonzalez II), federal form.” better. See v. Id. at 1209. Arizona Gonzalez 1162, (9th (Kozinski, Cir.2010) 624 F.3d meaning, To determine its all of the NVRA’s J., ("The dissenting) say NVRA doesn't language together must be read and not in Samantar, states must treat the federal form as a com- isolation. See 130 S.Ct. at 2289 plete application.... ("We question There’s no statutory phrases do not ... construe isolation; accepts whole....”) Arizona and uses the federal form for we read statutes as a (citation omitted). information contained in it. Arizona and alteration When read proof citizenship asks for together, meaning addition to the is clear. States must complete form registration accept in order to register- use the Federal Form for process.”), elections, reh'g granted opinion ing en banc & may voters for federal but also withdrawn, (9th Cir.2011). develop F.3d 953 This and use a state form with additional statutory en banc concurrence they comply § discusses the 1973gg-7(b). conditions if with isolation, language "accept clear, and use” in meaning with When the of the statute is language no reference to the reverting legislative history "[i]n addition” inappropri- is § 1973gg-4(a)(2), in 42 Concurring U.S.C. see Corp. Allapattah ate. See Exxon Mobil v. Servs., Inc., 546, Opinion, pp. again 567, diverging 439-42 from his 545 U.S. 125 S.Ct. dissent, prior (2005); where he noted: "[S]ection 162 L.Ed.2d 502 see also Ham- 1973gg-4(a)(2) 557, 665-68, ... 'develop Rumsfeld, allows states to dan v. 548 U.S. (2006) (Scalia, J., and use’ their own form if it all 'meets of the S.Ct. 165 L.Ed.2d 723 ("We 1973gg-7(b).’ criteria stated in section dissenting) repeatedly [Gon- have held that (Gonzalez I), v. legislative 485 F.3d 1041 ... history] imper- reliance [on zalez Arizona is (9th Cir.2007),] where, here, correctly; reads the statute statutory it missible lan- majority is the here guage unambiguous....”). that is mistaken.” Gon- II, fact, legislative 624 F.3d at 1205. In history unhelpful Chief zalez is also here Judge previously Kozinski "[L]egislative history identified a basic it because is unreliable.

451 manner; meticulously the inter- Siebold outlined that it has guard endeavored to play regulations promul- between election as far possible against any unnecessary Congress a gated by government state interference with State laws and regula- process, In the respectively. United tions ...” Id. empha- took care to Supreme States Court Supreme The Court further reasoned respect that accorded size the should be power Congress that the of to enact stat- implemented by procedures states. utes governing state matters “does not Siebold, (“State rights 100 U.S. at 394 See derogate power from the of the State to of rights and the the United States should execute its laws at the same time and in equally respected. be Both are essential places....” the same Id. at (emphasis 395 preservation to the of our liberties and the added). The laws of the state are But, of our perpetuity institutions. en- if, if, preempted only “both cannot be one, deavoring to vindicate the we should ” (em- executed at the same time.... Id. nullify our zeal impair not allow or added). phasis other.”) added). (emphasis Siebold, In there was no dispute regard- Supreme recognized right Court ing a conflict between the state and federal Congress power exercise its to enact Rather, regulations. the question raised

voting regulations supersede that would Congress was whether may partial enact regulations promulgated by a state. See regulations to However, implemented together be at Supreme id. Court regulations with state presume governing also noted that “we are bound to election judicious Congress procedures. has done so See id. at 382. Having an- 103-66, murky, ambiguous, zenship, (1993), often H.R.Rep. is itself and contra- No. at 20 Mobil, 568, dictory.” Exxon 545 U.S. at 140, 125 reprinted in 1993 U.S.C.C.A.N. 148-49 2611; Conroy Aniskoff, S.Ct. see also v. 507 (Conf.Rep.), it many is unclear how of the 511, 519, 1562, U.S. 113 S.Ct. 123 L.Ed.2d Congress members of who voted for the (1993) (Scalia, J., ("The concurring) 229 agreed NVRA with Senator Ford. See Exxon greatest legislative history defect of is its ille- Mobil, 570, ("The 545 U.S. at 125 S.Ct. 2611 laws, gitimacy. governed by by We are not utility of either can extend no further than the legislators. the intentions of As the Court light enacting Legislature it sheds on how the passed said in 1844: 'The law itas is the will statutory Trying fig- understood the text. houses, majority of the of both and the square ure out how to the Subcommittee spoken mode in which that will is is in the act Working Paper’s understanding with the Williams, itself....”') (quoting Aldridge v. 44 Report’s understanding, House or which is 9, 24, 9, (1845) U.S. 3 How. 11 L.Ed. 469 understanding more reflective of the of the fact, (emphasis original)). in the In this case task.”); enacting legislators, hopeless ais cf. glaring example using is a of the flaws of Hamdan, 666, 548 U.S. 126 S.Ct. 2749 legislative history. Although legislative (Scalia, J., ("Whether dissenting) the floor history Judge supports cited Chief Kozinski spoken are statements where no Senator argument, original his reasonable view of hears, reads, or written where no Senator sponsor clarity NVRA’s casts doubt on the they represent single at most the views of a Ford, legislative history. of that Senator Senator....”). said, previously As has been bill, sponsor thought of the that “there is "[¡judicial investigation legislative history nothing preclude in the bill now that would become, tendency Judge has a to borrow requiring presentation the State's of docu- phrase, Leventhal's memorable an exercise in mentary citizenship.” Cong. evidence of 139 'looking picking your over a crowd and S2897-4, out (Mar. 16, 1993). Rec. at S2902 He ” Mobil, friends.’ Exxon 545 U.S. at 125 thought specifying that an amendment that a Wald, (quoting S.Ct. 2611 Patricia require M. Some proof-of-citizenship state could was Therefore, Legislative History Observations on the Use though redundant. See id. even Term, opined Supreme the Conference in the Committee that the Court 68 Iowa (1983)). proof-of-citi- unamended NVRA disallowed L.Rev. statutory scheme. See affirmative, voided Louisiana’s in the question that swered 74, 118 464. of ha- at S.Ct. the writ id. Court denied Supreme the were by defendants who filed corpus beas voided in statutory scheme the Unlike federal laws. See violating the of convicted Foster, Proposition proof-of-eitizen- 200’s 374, at 399. id. present not the blatant does ship provision case, addressed Foster, the more recent Supreme Court by the conflict addressed a law and between state actual conflict an Indeed, majority its the rests in that case. Indeed, a in Foster blatant law. a federal to be the perceives what it analysis on federal statutes existed between conflict Clause. sweep of the Elections “expansive” to be elections Congressional requiring However, p. 391 n. 8. Majority Opinion, Monday first Tuesday after the “the held oppo- the is to message from Siebold year” in an even-numbered in November taking great pains effect. After site statutory under scheme which and a state in role the states equal emphasize designat the date was held on no election of federal elec- integrity preserving received a if a candidate by Congress ed that tions, counseled Supreme Court an during earlier majority of the votes preemp- to declare not hasten we should 68-69, at election. 522 U.S. “open primary” Indeed, statutory a state scheme. tion of 464. S.Ct. 118 paramount- that the expressly held Siebold that the explained only Court “so far as Supreme law extends cy of federal one inconsistent, was “a narrow no far- to be decided are and issue the two meaning Siebold, of the entirely on the at 386. The turning ...” 100 U.S. ther. 71, ...” Id. at federal statutes and federal en- state and clarified that state Court added). The (emphasis only 464 both cannot be 118 S.Ct. conflict “[i]f actments encompassing election as Court defined ...” Id. performed and offi- actions of voters “the combined in holding similar Foster couched its of an to make a final selection cials meant fashion, clarifying preeminence that the noted that ...” Id. The Court officeholder applies over state statutes federal statutes Tuesday fol- Congress had established conflict, that the two only to the extent Monday first in November lowing the ...” conflict extends only “so far as the electing members Con- day” “the for Foster, 69, 464, (quot- 522 U.S. at 118 S.Ct. system Because the in Louisi- gress. Id. 384). Siebold, ing 100 U.S. a matter of law ana “concluded as was making In the determination whether act day, with no the federal election before 2 statutory scheme violated the Louisiana on the date place in law or in fact to take 7, focused on Supreme § Court U.S.C. the Louisiana stat- by Congress,” chosen §in 7. Id. at “election” as used the word 7,§ and was ute with U.S.C. conflicted dictionary for consulted a 71. The Court 73, 464. Id. at 118 S.Ct. preempted. if to determine the definition of “election” election was Congressional Because no stat- existed between Louisiana’s a conflict explicitly Congress held on the date to be § utory scheme day” holding Con- as “the designated to remember elections, important It is the Louisiana statuto- gressional enact- opined that State directly Supreme Court clearly and conflicted ry scheme by Federal enact- superseded ments are Reiterating § 7. federal law with performed cannot be ments both holding “[i]f all elections for Con- “mandates Siebold, applied As 100 U.S. at 386. day ...” single throughout ... a gress on Foster, statutory scheme was the state Union,” the Court id. at 118 S.Ct. impossible finding it was to hold a support ques voided because that the matter in designated election on the Congressional claims.”); proponent tion is what its see if in fact day completed Grain, Inc., the election was on In Big also re River 718 F.2d Foster, (9th Cir.1983) an earlier date. See 522 U.S. at 73. 968, (noting that “the notary’s protect against function is to re view, my majority opinion In has ”). cording false instruments ... In con principle stretched the established Sie- trast, Proposition proof-of-citizenship 200’s applied beyond bold and in Foster its in- requirement nothing has to do with nota bounds.2 tended rization everything or authentication and Indeed, both Siebold and Foster took affirming eligibility to do with registra preemption care to delineate that extended tion. requirements Because the of both exists, only far as a conflict and no Proposition the NVRA and may 200 be Siebold, 386; farther. See 100 U.S. at conflict, met without they easily can co Foster, 69, 522 at U.S. 118 S.Ct. 464. And exist under the Election Clause. See Sie a if regulations conflict exists the two bold, 386; Foster, U.S. 522 U.S. at Siebold, cannot coexist. See 100 U.S. at 69, 118 may S.Ct. 464. As both statutes be above, 386. As discussed such is not the conflict, enforced with no the NVRA does Proposition requirement case for 200’s pre-empt not Proposition 200. See id. prospective present proof a of citi- voter reason, For that I would affirm the district zenship, when considered with the con- grant court’s summary judgment of to the tents of the Federal Form. of respectfully State Arizona. I dissent fact that the a pro- NVRA contains from the majority’s conclusion to the con precluding requirement vision “nota- trary. rization of other formal authentication” in way Proposition no conflicts with 200’s

proof-of-citizenship requirement. Nota-

rization and authentication are concerned genuineness

with the of an executed docu- See, e.g.,

ment. Federal Rule of Evidence

901(a) (“The requirement of authentication

... is satisfied evidence sufficient to agree pages anything I do not that the cases aggregation cited on more than a mere majority opinion delegated agents 4126-27 n.8 of the govern- establish of other states and ments, Supreme that the superior Court has "construed Con- gener- each of which is to the gress's authority government, under power Election Clause al it must have the Rather, expansively." years protect in the earlier the elections on which its existence existence, many depends, this nation’s when corruption....”); states re- from violence and ("This government, sisted the notion aof centralized id. at proposition S.Ct. 152 answers, also, emphasize these cases served to objection that federal another to the consti- consideration, tutionality elections conducted in the various were states of the laws under See, subject regulation. e.g., namely, right federal The Ku that the to vote for member of Cases, 651, 657-58, congress Klux 110 U.S. governed by S.Ct. ... is the law of each (1884) ("If ”). government 28 L.Ed. 274 respectively.... this state notes for Legal the Form with Disabilities Educ. & Fund permits that the NVRA Federal Def. security argues McKay Thompson, specifically v. forbid use of social num- 26. Arizona that holding at does not bers.” Id. 756. But this 752, (6th Cir.2000), supports 226 F.3d 755-56 help Arizona because the Federal Form al- may require- that states add its conclusion applicants provide states to instruct to lows Form, long the Federal so as the ments to security the "ID their full social numbers in expressly require- NVRAdoes not forbid those (and box on the Federal Form Ten- number” misreading McKay. ments. Arizona is In so). supra p. nessee’s instructions do See 396 case, rejected prospective a that the court support McKay & n. 18. therefore does not objection practice to Tennessee's voter’s proposition may the that a state condition security requiring a full social as a number registration provision applicant's on an of in- registration, precondition to see id. requested successful on Federal formation that is not the 754, stating NVRA does not Form. ”[t]he 401 Cir.1998) Allen, (4th number, 283, 152 cense tribal v. F.3d identification num- to (“Congress passed ber, the ... make registration number, NVRA or alien all of vote----”); register to it easier which suffice to citizenship could show (6th Miller, 833, v. 129 F.3d easily ACORN can be written on the Federal Cir.1997) (“In an attempt reason, contends, to reinforce this Form. For Arizona qualified by reduc- right citizens to vote proof citizenship requirement its is not registra- restrictive ing the nature of voter excessively burdensome under the stan- requirements, Congress passed tion dard set forth v. Marion Crawford [NVRA].”). Board, to de- While the chose County 181, EAC Election 553 U.S. 199- postcard, sign 1610, Federal Form as a 128 S.Ct. 170 L.Ed.2d 574 (2008) (Stevens, and mailed easily J., could be filled out which announcing judg- own, Court). Proposition registration on its 200’s ment argument of the This miss- much makes the Federal Form provision goal es the mark. of the was NVRA example, difficult to use. noth- more For the registration streamline for process the face of Form or in ing on the Federal applicants; all fact that Proposition state-specific Arizona instructions for registration provision 200’s only partially may that some need to applicants goal indicates this undermines does not make it number, security a full social a provide with the harmonious NVRA. does Nor Arizona’s, number, an identification alien tribal or provide support for ar- Crawford number, registration Proposition gument. Crawford, In the Court consid- Nor Form does the Federal requires.27 polling place ered requirement whether documents, that additional such as imposed instruct right a substantial burden on the certificates or must be passports, vote, birth in violation of the Fourteenth by if some Even an provided applicants. Amendment. See id. at 128 S.Ct. require- were applicant aware of Arizona’s if 1610. Even Arizona is correct provide of citi- documentary proof ment Proposition 200’s registration provision Form, zenship with appli- the Federal impose burden, does not such a con- this required would have to cant locate the light clusion no on question sheds be- document, it, photocopy and enclose the registration fore us here: whether photocopy envelope with the form in an displaced provision the NVRA under short, In mailing. much of of the the value analysis. an Elections Clause in removing Form to the Federal obstacles F registration process voter is lost under

Notes

notes Arizona is only Form plicant must meet the Federal 1973gg-4(a)(2) §§ correct requirements register order to for fed- 1973gg-7(b) registration provi- allow the Thus, eral elections. Arizona must allow sion, “this would mean applicant, satisfying proof-of- an all but the proof NVRA allows Arizona to include a citizenship requirement, registered to be citizenship requirement on its State elections, (citation to vote in federal while not allow- Majority Opinion, p. Form.” omitted). ing applicant registered to be for state “It would not mean that Arizona faulty interpretation elections. This con- authority has requirement to add this However, plain language tradicts the NVRA’s that “a the Federal Form ...” Id. this

Case Details

Case Name: Jesus Gonzalez v. State of Arizona

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Apr 17, 2012

Citation: 677 F.3d 383

Docket Number: 08-17094, 08-17115

Court Abbreviation: 9th Cir.