Maria Gonzalez v. State of Arizona

Trill, detentions, prevent illegal Congress specif- e.g., Pa.Super. Commonwealth (1988) (detail- 1106, 1116-18 543 A.2d ically “[n]othing dictated that contained in ing outcry over episodes public of various 4243, 4246, or precludes section a defenses). insanity of It courts’ uses is committed person who is under either of reasonable, therefore, only society that has establishing by such sections from writ of making an interest in this defense avail- corpus illegality habeas of his deten- truly It able to insane. makes 4247(g). majori- § tion.” 18 U.S.C. The sense that a defendant would have to make ty’s to spirit rule would seem violate the of pursuing guilty a difficult choice in a “not scheme, if congressional not the letter insanity” defense, by reason of because it it, by holding of essentially that the habeas is, fact, in remedy. By mitigat- a dramatic remedy in is already place simply good not (which ing that the effects of choice I I enough. creating see no reason for allowing jurisdiction believe this case jurisdictional new rule to allow defendants do), would that we frustrate balance. system like already Vela to circumvent say This is not that Vela has no in place. opportunity challenge his commitment. Because an individual committed to men Based on these considerations and the “detained,” being tal institution is Vela Supreme unequivocal Court’s instruction may always file a for a writ petition no “appellate there can be review § corpus 4247(g). habeas 18 U.S.C. under until imposition conviction and of sen- Moreover, may appeal Vela the district tence,” Flanagan, 465 U.S. at court’s subsequent commitment order as 1051, I majority’s dissent an appealable final order. See United holding jurisdiction has this court Stewart, (3d States v. appeal. hear his Cir.2006) (“[We] that a district hold court’s 4243(e) § committing order an individual Attorney custody

to the General’s after his

acquittal by of insanity ap reason is an 1291.”).

pealable final order under I

understand, course, higher standard

of review associated with chal habeas

lenges. I also understand Vela arguments be able to all the same raise

in a habeas that he challenge raises here.

Nevertheless, are the those remedies that Congress Constitution and have out persons

lined to make available Vela’s

position. GONZALEZ,; Maria M. Luciano Valen statute, explicitly habeas which al- cia; The Inter Tribal Council Ari

lows persons challenge committed their zona, Inc.; Advocacy Arizona Net detention, proves there is scheme work; Gallardo; League Steve M. already place treat people Vela’s United Latin American Citizens Ari position. insanity Claiming significant zona; League Women Voters of risk, loses, to be sure. If the defense Arizona; People for the American defendant faces a criminal sentence. But Way Foundation; Hopi Tribe, succeeds, even if Plain defense defendant tiffs, faces detention in a mental institution. To Gonzalez; Abeytia; Maria Bernie M. Community Forum; Hispanic

Arizona Causa; Friendly La Chicanos Por Hispanic Abeytia; Arizona Com Bernie Gonzalez; House; Debbie Lo Jesus Forum; La munity Por Chicanos Registration pez; Voter Southwest House; Causa; Friendly Jesus Gonza Project; Valencia; Education Luciano lez; Lopez; Southwest Voter Debbie Sol; People Ameri Del for the Valle Project; Registration Valle Education Foundation; Vote, Way Project can Sol; Vote, Plaintiffs-Ap Project Del Plaintiffs, pellants, Arizona, The Inter Tribal Council of Advocacy Network; Inc.; Arizona Brewer, ARIZONA; in her Jan State Gallardo; League M. of United Steve Secretary capacity as of State official Arizona; Latin American Citizens Arizona; Shelly Baker, Paz La League Arizona; Voters of Women Recorder; Manuz, County Berta Hopi Tribe, Plaintiffs-Appellants, Recorder; County Candace Greenlee Recorder; Owens, County Coconino Arizona; Brewer, Jan in her State of Constable, Yavapai County Lynn Secretary capacity as official State Director; Kelly Dastrup, Na Election Arizona; Shelly Baker, La Paz Director; County vajo Laura Election Recorder; Manuz, County Berta County Recorder; Dean-Lytle, Pinal County Recorder; Candace Greenlee Judy Dickerson, County Elec Graham Recorder; Owens, County Coconino Hale, Director; Donna La Paz tion Patty Hansen, County Elec Coconino Director; County Election Susan Kelly Navajo Director; Dastrup, Marlar, County Hightower Yuma Re Lynn County Director; Election Con corder; Hoyos, County Pinal Gilberto County stable, Yavapai Election Di Director; Justman, Laurette Election Dean-Lytle, rector; Pinal Laura Recorder; Navajo County Patty Han Recorder; Dickerson, County Judy County Director; sen, County Di Election Coconino Election Graham Hale, County Paz Election Donna La Rhodes, rector; Christine Cochise Hightower Marlar, Director; Susan County Recorder; Haught Linda County Recorder; Yuma Gilberto Ho Ortega, County Recorder; Dixie Gila County Director; yos, Election Pinal Mundy, County Di Gila Election Justman, County Navajo Re Laurette rector; Nelson, County Pima Brad Rhodes, corder; Cochise Christine Director; Osborne, Karen Election Recorder; Haught County Linda County Director; Maricopa Election County Recorder; Ortega, Dixie Gila Pearson, County Yvonne Greenlee County Mundy, Di Gila Election Penny Director; Pew, Election Nelson, County rector; Brad Pima Director; County Apache Election Director; Osborne, Karen Election Maricopa County Purcell, Re Helen County Director; Maricopa Election corder; Rodriguez, F. Pima Ann Pearson, County Greenlee Yvonne County Recorder, Defendants-Appel Director; Pew, Penny Election Director; County Apache lees, Election Purcell, County Maricopa Helen Re

corder; Rodriguez, F. Ann Pima

County Recorder, Defendants-Appel

lees, 08-17094,

Nos. 08-17115.

United States Appeals, Court of

Ninth Circuit.

Argued and Submitted Oct. 2009.

Filed Oct. Perales, Legal

Nina Mexican American Fund, Anto- Defense Education San nio, TX, M. Plaintiffs/Appellants for Jesus Gonzalez, al. et Greenbaum, Lawyers M. Committee Jon Law, Rights Washington, for Civil Under D.C., Plaintiffs/Appellants Inter Tribal for Council, al. et Hartman-Tellez, Phoenix, AZ, Karen J. Plaintiffs/Appellants Inter-Tribal for Council, al. et Firm, P. Sparks, Sparks Evergreen Joe Law Amicus Curiae Freedom Foun- P.C., Scottsdale, AZ, PlaintiflyAppel- dation. Arizona, lant Inter Tribal Council of Inc. Netter, LLP, Brian D. Mayer Brown Bailey, A. Attorney Barbara Assistant D.C., Washington, on behalf of Amici Curi- General, Phoenix, AZ, for Defendants/Ap- Congressman Brady, ae Robert A. Con- pellees State of Arizona and Arizona Sec- gresswoman Lofgren, Congressman Zoe retary of State Ken Bennett. Gonzalez, A. Congressman Charles Raul Mary General, O’Grady, R. Solicitor Grijalva, M. Congressman Jose E. Phoenix, AZ, for Defendants/Appellees Serrano. State of Arizona Arizona Secretary State Ken Bennett. Samp, Richard A. Washington Legal Foundation, D.C., Wilenchik, Washington,

Dennis on behalf Wilenchik and Bart- ness, P.C., Phoenix, AZ, for Defen- Now, of Amici Curiae Protect Arizona dants/Appellees Shelly Baker, La Paz Washington Legal Foundation, and Allied Recorder, County et al. Educational Foundation. Hirsch, LLP,

Sam Jenner & Block D.C.,

Washington, on behalf of Amicus Cu- League

riae The Voters of Women

United States. Bracey, LLP,

Kali N. Jenner & Block D.C.,

Washington, on behalf of Amicus Cu- League

riae The of Women Voters of the United States. O’CONNOR, Before: SANDRA DAY Justice,* KOZINSKI, Associate ALEX Amunson, Ring

Jessica Jenner & Block LLP, D.C., Washington, Judge, IKUTA, on behalf of Ami- Chief and SANDRA S. cus League Curiae The of Women Voters Circuit Judge.

of the United States. IKUTA; Opinion by Judge Dissent Zall,

Barnaby Jacobs, W. Weinberg & Judge Chief KOZINSKI. LLP, Rockville, MD, on behalf of Amicus Curiae Unity Legal American Defense

Fund, Inc. OPINION Borden, Charles E. O’Melveny Myers & IKUTA, Judge: Circuit LLP, D.C., Washington, on behalf of Ami- Proposition requires prospective cus Curiae National Association of Latino present voters Arizona to documentary Elected Appointed Officials Edu- proof citizenship of register cational order to Fund. vote, 16-152,16-166, §§ Ariz.Rev.Stat. Joel M. Spector, Mountain States Legal requires registered present proof voters to Foundation, Lakewood, CO, on behalf of of identification in order to Amicus cast a ballot at Curiae Mountain Legal States Foundation. polls, § the Ariz.Rev.Stat. 16-579. This appeal questions raises the Propo- whether Perry Pendley,

William Mountain States sition 200 violates the Legal Foundation, Lakewood, CO, Voting Rights Act on be- half of Amicus § § Curiae Mountain States U.S.C. is unconstitutional Legal Foundation. under the Fourteenth or Twenty-fourth Constitution, Amendments of the Reitz, or is void

Michael J. Evergreen Freedom Foundation, WA, Olympia, on behalf of as inconsistent with the National Voter * O'Connor, (Ret.), Day sitting by designation pursuant The Honorable Sandra Associ- Court Supreme 294(a). ate Justice of the § United States to 28 U.S.C. if reject application no evidence of (NVRA), 42 U.S.C. Act

Registration citizenship is attached. the NVRA hold that seq. § et We 1973gg regis- 200’s voter Proposition 16-152(A)(23). supersedes Second, § Ariz.Rev.Stat. that Arizona’s doc- procedures, tration of the Arizona amended section 16-166 citizenship requirement of umentary proof to state that: “The Coun- Revised Statutes invalid. We is therefore registration any application for for reject shall ty Recorder argu- Appellants’ reject the remainder accompanied by is not registration ments. citi- satisfactory evidence of United States satisfactory evidence

zenship,” and defined I include a driver’s license citizenship license issued or similar identification Arizona voters November On certificate, a birth agency, motor vehicle initiative, Proposition a state passed or oth- naturalization documents Governor) passport, (upon proclamation which documents, or immigration specified er to the state’s various revisions enacted Native relating cards Ameri- specified changes, Among other laws. election § Ariz.Rev.Stat. 16- can tribal status. See procedures 200 amended 166(F).1 checking vot- and for registration voter places in both polling ers’ identification addressed identifi- Proposition 200 also respect elections. With state and federal places. Spe- procedures polling cation Proposi- procedures, registration voter Proposition 200 amended section cifically, two state statutes. 200 amended Arizona Revised Statutes to 16-579 of the First, following requirement it added present one form provide that voters “shall the Arizona Revised name, 16-152 of to section that bears the ad- of identification Statutes, lists the contents of which of the elector or two photograph dress and form: registration voter state of identification bear different forms address of the elector.” the name and for the form used The 16-579(A) (2004). § Ariz.Rev.Stat. ... statement [a] shall contain electors State, statutory acting under Secretary of submit evidence applicant shall 16-452(A), Ariz.Rev.Stat. authority, see citizenship with States of United (B), procedure specifying promulgated registrar shall application and 16-166(F) applicant’s United following county recorder provides 1.Section approved passport. identification documents: list of States county presentation A recorder applicant’s driver 1. The number nonoperating li- naturalization applicant’s or identification United States license by the after October cense issued the certificate the number of documents or equiva- transportation the department of or of the If the number of naturalization. governmental agency of another state lent provided, is the certificate of naturalization agency if the indi- the United States within regis- in the applicant shall not be included applicant’s driver license or the cates on of the certifi- until the number tration rolls that the nonoperating identification license with the is verified cate of naturalization satisfactory proof provided of person has immigration and naturaliza- United States citizenship. United States county recorder. service the tion applicant's legible photocopy the A of 2. proof of or methods 5. Other documents citizenship verifies certificate that birth pursuant to the immi- that are established county the recorder. satisfaction of control act of 1986. gration reform and pages pertinent legible photocopy A of 3. of Indian Af- applicant’s Bureau 6. The passport applicant’s United States of the number, treaty card num- card tribal fairs applicant applicant’s identifying the and the number. or tribal enrollment ber presentation to the passport or number accepted Amendment, the “forms of identification” un- dispa- Fourteenth statute, der which photo- rately impacted included Latino voters and diluted graph-bearing documents such as driver’s Latino voting power in violation of 2 of and non-photograph-bearing Voting Rights licenses docu- Act. The Inter Tribal utility (ITCA), ments such as bills or bank state- Council of non-profit Arizona a legislature ments. the state organization representing twenty Arizona codify tribes, amended section 16-579 to that pro- complaint filed a along with various cedure.2 organizations,3 Tribe, other Hopi Representative Steve Gallardo from the Shortly after Proposition passage, 200’s Arizona State House of Representatives.4 plaintiffs various filed a complaint against Gonzalez, Like Proposi- ITCA claimed that prevent Arizona to implementation (to tion 200 violated the NVRA the extent changes. these groups plaintiffs Two regulated registration federal proce- are appeal. relevant to this Jesus Gonza- dures), poll and constituted a tax under the lez, representing individual Arizona resi- Twenty-fourth Amendment. ITCA also organizational plaintiffs, dents and claimed separately that Proposition claimed that Proposition 200 violated the NVRA poll was a tax under the Fourteenth (to the extent the Arizona regu- enactment Amendment. The district court consoli- registration lated federal procedures), was dated Gonzalez and complaints. ITCA’s poll Twenty-fourth tax under Amendment, burdened naturalized citizens Gonzalez and prelimi- ITCA moved for a in violation of Equal Protection nary injunction Clause enjoin application 579(A)(1) (c)A 2.As provides: section valid form of identification that bears 16— photograph, name and address of the (a) A valid form of identification that bears except elector that if the address on the photograph, name and address of the reasonably appear identification does not reasonably elector that appears to be the precinct be the same as the address in the pre- same as the name and address of the register or the identification is a valid Unit- register, including cinct an Arizona driver Military ed States identification card or a license, nonoperating an Arizona identifica- passport valid United States and does not license, a tribal enrollment card or address, bear an the identification must be other form of tribal identification or a Unit- accompanied by one of the federal, items listed in ed government States state or local (b) paragraph. subdivision of this issued identification. Identification deemed valid unless it can be determined joined by ITCA's action League was expired. on its face that it has Arizona, Women League Voters of of Unit- (b) Two different items that contain the Citizens, ed Latin American the Arizona Advo- name and address of the elector that rea- Network, cacy People For the American sonably appears to be the same as the name Foundation, Way well as the claimants precinct register, and address in the includ- listed above. bill, ing utility a bank or credit union statement that ninety days is dated within election, plaintiffs 4. We refer to named of the date Gonzalez and a valid Arizona representing plaintiffs ITCA as registration, all vehicle associated Arizona vehicle in- card, card, respective appropri- their surance actions. Where Indian census tribal ate, we enrollment refer to Gonzalez and card or other ITCA individu- form of tribal identification, however, statement, ally; property because Gonzalez and tax ITCA certificate, bring Twenty-fourth recorder's the same a voter NVRA and card, claims, federal, a valid United Amendment States state we refer to both or collec- government tively local issued as "Gonzalez” discussing identification or in the sections any mailing that is “official election these two claims. We materi- refer to the defendants “Arizona,” al.” collectively Identification is though deemed valid unless it even Ari- can be county determined on its face that it has zona recorders were also named as expired. defendants in these consolidated actions. II in the 2006 requirements 200’s Proposition election, v. Arizona Gonzalez general that begin with Gonzalez’s claim We 1041, (Gonzalez I), F.3d of Proposition documentary proof 200’s cit- Cir.2007). denied their The district court requirement registration for is su- izenship this court motion, panel a motions but comprehensive perseded by the NVRA’s injunction pend granted the reversed and for voters in federal procedure registering appeal. on of the merits ing disposition argues elections. Gonzalez injunc Court vacated Supreme Id. The preempts Arizona law under both NVRA tion, for clarification wheth and remanded and the Elections Supremacy Clause given had due deference er this court In of the re- Clause U.S. Constitution. fact. Id. at findings of the district court’s Supremacy on the sponse, Arizona relies Gonzalez, 1048; 549 U.S. see Purcell against preemp- “presumption Clause’s (2006). 166 L.Ed.2d 1 On 127 S.Ct. Medtronic, Lohr, tion,” Inc. v. 518 U.S. remand, pur chose to ITCA Gonzalez 470, 485, 135 L.Ed.2d 700 only to injunctive respect relief with sue (1996), argue that the NVRA did not requirement. registration 200’s Proposition I, The impliedly preempt Gonza state voter expressly Gonzalez or affirmed the district panel I thereafter lez registration addressing Before laws. injunction, preliminary of the court’s denial parties’ arguments, we first consider Proposition 200’s holding whether the framework the Elections tax, poll id. at was not requirement guides Supremacy or the Clause Clause NVRA, id. at was not a violation analysis our here. subsequently district court 1050-51. The summary for Arizona’s motion granted A I to rule relying on Gonzalez judgment, The Elections Clause establishes an unconsti was not Proposition unique relationship between the state and tax and was not invalid as poll tutional governments. provides: federal It trial, the NVRA. After conflicting with all other claims court resolved district Times, Places, The and Manner hold- Arizona, holding Proposition favor of Repre- ing Elections Senators Voting § 2 violate 200 did not sentatives, in each prescribed shall be not discriminate Rights Act and did thereof; but Legislature State naturalized citizens or burden against time Law make Congress may in violation of right to vote fundamental Regulations, except as to or alter such Equal Pro Fourteenth Amendment’s chusing Place of Senators. tection Clause. Const, I, nutshell, 1. In a art. cl. U.S. challenge Gonzalez and ITCA appeal, On gives govern- state the Elections Clause rulings court’s on the NVRA the district regulate responsibility ments initial Twenty-fourth Amendment. and the elections, national “but mechanics of addition, claims that ITCA preempt Congress so far as declines tax under the Fourteenth poll is an invalid Love, choices.” Foster v. legislative state Amendment, challenges the and Gonzalez 67, 69, 464, 139 L.Ed.2d on both the Vot- district court’s decisions (1997). equal protec- Act claim and the ing Rights re- history of the Elections Clause based on challenge for discrimination this unusual reasoning behind veals on the origin and undue burden national the Articles delegation power. Under consider right to vote. We fundamental Confederation, had full au- the states in turn. claims each of these maintain, thority to appoint, by or recall con- As indicated this historical con gressional delegates.5 Philadelphia text, At the empowers the Elections Clause both Convention, delegates expressed concern the federal and governments state to enact that, unfettered, if left states could use this governing laws the mechanics of federal power to frustrate the creation of the na- By plain elections. its language, government, obviously tional by most ne- delegates Clause authority default to the glecting to federal hold elections.6 The “Times, Places, states to prescribe the Framers decided that Congress should be conducting Manner” of national elections given authority to oversee the states’ Const, I, in the first instance. U.S. art. procedures related national elections as 4,§ cl. 1. The possess states would not this safeguard against potential state abuse. authority but for the Clause: As the Su Limits, Thornton, See U.S. Term Inc. v. noted, preme Court has authority 779, 808-09, 514 U.S. 115 S.Ct. 131 regulate national elections “aris[es] (1995); L.Ed.2d 881 see also The Federal- itself,” the Constitution and is therefore (Alexander Hamilton) (Ron ist No. 59 P. “not a power reserved of the States.” U.S. ed.) ed., Fairfield 1981 2d (explaining that Limits, Term U.S. 115 S.Ct. evident, “[njothing can be more than that 1842. Because federal elections did not power exclusive of regulating elections come being into until the federal govern government, the national in the hands formed, ment was individual states have no legislatures, the State would leave the inherent or preexisting authority over this existence of entirely the Union at their 804-05, domain. See id. at 115 S.Ct. 1842. mercy”). Over the protest of some South- While the states have default re delegates,7 ern approved the Framers lan- sponsibility over the mechanics of federal guage giving Congress power to “make or elections, Congress “may because alter” the regulations. states’ 5 Elli- See (statement by time Law make or alter such Regula ot’s Debates 401-02 of James Const, Madison). passed by state, tions” subsequently As U.S. art. modified to I, give Congress supervisory power, power this lan- cl. over federal election guage became the Elections Clause.8 procedures has been described the Su- 5. See Articles power of Confederation of art. V over the states. 5 Elliot’s Debates at ("[Delegates annually appointed shall states, be contended, they 401. "The could and legislature such manner as the of each state regulate legislative must be relied on” ap- power, shall direct ... with a reserved to Jubelirer, pointments. Id. See also Vieth v. state, delegates.... each to recall its Each 267, 275-76, delegates state shall maintain its own in a (2004). L.Ed.2d 546 states....”). meeting of the 8.Alexander Hamilton described the need for 6. See 1 The Debates in the Several State Con- congressional oversight of the states as fol- Adoption ventions on the of the Federal Con- lows: "[The Framers] have submitted the stitution as Recommended the General regulation govern- of elections for the federal Philadelphia Together Convention at in 1787 ment, instance, Convention, in the first with the to the local ad- Journal of the Federal Letter, ministrations; which, Minutes, cases, ordinary Luther Martin’s Yates’s Con- gressional Opinions, Virginia Kentucky improper & prevail, may when no views be '98-'99, Resolutions of and Other Illustrations satisfactory; both more convenient and more 1987) (photo, reprint Constitution 225 they but have reserved to the national au- (Jonathan ed., ed.1901) Elliot 2d [hereinafter thority right interpose, whenever ex- Debates], Elliot’s traordinary might circumstances render interposition necessary safety.” to its delegates 7. South Carolinian Charles Pinck- No. Federalist ney Rutledge and John moved to exclude the language giving Congress supervisory

1173 otherwise; Congress if and when deems ultimately “committed to preme Court acts, Cole to conform to Congress.” obligated the states are control the exclusive 554, Green, 549, 66 S.Ct. procedures 328 U.S. carry v. out whatever Con- grove (1946).9 Accordingly, 1198, Foster, 69, 1432 90 L.Ed. 522 U.S. at requires. See gress subject is Congress over power “the 118 S.Ct. as and may be exercised It paramount. overview, be clear from this As should to exercise it. sees fit Congress

when operates quite differ- the Elections Clause exercised, Congress, so action of When Supremacy Clause. The ently from the with the and conflicts far as it extends that the law of provides Clause Supremacy State, necessarily super regulations supreme “shall be the United States Siebold, 100 U.S. Ex Parte them.” sedes Land; in the any Thing ... Law of (1879); 371, 384, 717 see also 25 L.Ed. any state to the or Laws Constitution 69, Foster, at 118 S.Ct. 464. 522 U.S. Const, Contrary notwithstanding.” U.S. the Elections Not does VI, function of primary cl. 2. “The art. authority super to Congress grant Clause is to define the relation- Supremacy Clause laws, have in but we election sede state state and federal law. It is ship between states to require to the Clause terpreted essentially power conferring provision, su Congress’s affirmatively implement authority allocates between the one that compensa without regulations, perseding governments.” and state White national Voting government. from the federal tion Williams, Tribe v. 810 Apache Mountain Wilson, 1411, 60 F.3d v. Rights Coalition Cir.1985). (9th 844, F.2d 848 Cir.1995). (9th way, Put another 1415 sovereignty, system In our of dual pow Congress gives Clause Elections carry Supremacy out agencies deciding state when under “conscript er to in accordance procedures law particular voter” state [federal] Clause whether mandates. Id. This Congress’s enactment, own with courts by a federal preempted among virtually unique makes the Clause “delicate balance” to maintain the strive Constitution, in the provisions all other the States and the Federal Gov between they not what “mostly [states] tell which Gregory Ashcroft, 501 U.S. ernment. do.” they can or cannot must do but what 460, 2395, 452, 115 L.Ed.2d 410 111 S.Ct. 791, 794 Edgar, ACORN 485,116 Medtronic, (1991); at 518 U.S. see Cir.1995). pre thus endeavor to 2240. Courts S.Ct. authority possible, when serve the states’ sum, role the cre state’s 460, 111 S.Ct. Gregory, see 501 U.S. elec implementation of federal ation 2395, congressional particularly where the Elections procedures tion under preempt a state enactment threatens to the elections is to administer Clause of its residents’ regulating matters Congress until law through procedures its own 1263, (1888) (authority regu- 32 L.Ed. 274 generally construed Con- Court has 9. The authority coinciding gress’s under the Elections election with exclusive late conduct See, (The expansively. e.g., contest); United States v. parte Yarbrough Clause Gradwell, Ku- Ex federal 483, 407, 476, 152, 37 S.Ct. 243 U.S. Cases), U.S. Klux (1917) (authority over federal elec- L.Ed. 857 (1884) (authority to make addi- L.Ed. 274 certification process, free, pure, and safe exercise of tional laws results); Mosley, U.S. States v. of 383, 386, United Clarke, vote); parte 100 U.S. right Ex (1915) 59 L.Ed. 1355 35 S.Ct. (1879) (authority punish L.Ed. 715 right eligible (authority enforce the for violation of state election officers state counted); cast and have ballot voter to ballot elections). Congressional vis-a-vis duties 752-53, Coy, Parte Ex (internal safety, health and an area to which 111 2395 quotation S.Ct. marks “[sjtates great lati- traditionally omitted); have had Cipollone see also v. Liggett ... legislate” tude as matter of local Inc., 504, 516, Group, 505 112 U.S. S.Ct. concern, Metro. Ins. Co. Massachu- (1992) (“Consider- 2608, 120 L.Ed.2d 407 Life setts, 724, 756, 2380, 105 S.Ct. 85 arising ation of Suprema- issues under the (1985). L.Ed.2d 728 See also Altria cy starts with the assumption Clause —Good, -, Group, Inc. v. U.S. 129 police powers the historic of the States are 538, 543, (2008); 172 L.Ed.2d S.Ct. 398 Act, superseded by not to be ... Federal Medtronic, 518 at 116 2240. U.S. S.Ct. unless that is pur- the clear and manifest Only where no reconciliation between state (internal pose Congress.”) quotation and federal enactments be reached do omitted). marks and brackets Like the hold that Congress’s courts enactments presumption against preemption, this rule Altria, prevail, e.g., must 129 at S.Ct. nothing “is more than an acknowledgment however, understanding, with the that “the that the States retain substantial sovereign individual ... indepen- retain[their] States scheme, powers under our constitutional authority dent and ... uncontrollable powers Congress with which does not any Congress extent” that has not inter- readily Gregory, interfere.” 501 U.S. at (Alexan- fered, see The Federalist No. 33 461, 111 S.Ct. 2395. Hamilton). der light

In history pur of the different jurisprudence, This which is moti pose provisions, of these constitutional large part concerns, vated in by federalism not surprising preemption analy that the analyzing is unsuited to preemptive Supremacy sis for the Clause differs from a congressional effect of enactment under that of the In Elections Clause. its Su the Elections Clause. Because the states’ premacy jurisprudence, Clause the Su power sole over national proce election preme special guidelines Court has crafted that delegated by dures is the Elections striking to assist courts in the correct bal Limits, Clause, Term U.S. 514 U.S. at ance between power. federal and state and states otherwise have First, examining claims that a federal domain, authority no reserved over this law preempts through a state statute id., courts deciding issues raised under the Clause, Supremacy Supreme Court in Elections Clause need not strike bal structs to begin “presump courts with a ance between competing sovereigns. In against tion preemption.” E.g., Altria stead, Clause, the Elections as a standal Medtronic, 543; Group, 129 S.Ct. at 518 one preemption provision, establishes its U.S. at principle S.Ct. 2240. This balance, resolving own all conflicts favor because, applies recently as the Court has See, government. e.g., the federal Fos noted, “respect indepen for the States as ter, at (stating U.S. 118 S.Ct. 464 dent sovereigns system our federal explicitly that “the gives Constitution Con leads us to Congress assume that does gress say” the final on matters related to cavalierly pre-empt state-law causes of ac federal procedures). election For this rea — Levine, U.S.-, Wyeth tion.” son, against the “presumption preemption” 1187, 1195 3, 173 (2009) n. L.Ed.2d 51 “plain guide statement rule” that (internal omitted). quotation marks Sec analysis preemption courts’ under the ond, adopted the Court has a “plain state Supremacy Clause are not transferable to rule,” holding ment that a federal statute Gregory, Elections Clause context. preempts a state statute when it is Cf. 460-61, the “clear purpose and manifest U.S. S.Ct. 2395. In Con gress” 461, deed, Gregory, to do so. Supreme suggested U.S. has Court Foster, “make or alter” certain upheld ing of the states’ much. Court Court, state According Fifth Circuit’s determination Id. at rules. aby voided federal elec election law was difficulty no “intrinsic there is such co- law; however, adopting instead of between the state operation” and national analysis, Supremacy Clause Fifth Circuit’s governments the two legislatures because analyzed claim un Court Supreme “equality jurisdiction” an possess do not Clause, Elections without ever der the respect with federal elections. Id. at any presumption against pre mentioning Congress may 392. While override state requirement plain of a state emption or enactments, the state vitiate congressional preempt. intent to ment of Congress by system adopting action'of Foster, 67, 464; 118 See 522 U.S. S.Ct. regulations congressional to undo efforts. (5th Foster, Cir.1996), Love v. 90 F.3d 393, instances, id. at 397. In all “the See 67, 464, in granted cert. 522 U.S. State, they laws of the in so far as are (1997). fact, In our sur 139 L.Ed.2d 369 with the of Congress inconsistent laws on opinions deciding vey Supreme Court subject, the same cease to have effect as Clause reveals issues under the Elections laws.” Id. at 397. relied on or even no case where Court later, century Supreme Over a Court Supremacy principles. Clause discussed clarified what constitutes a conflict under empow- Because the Elections Clause single system the Elections Clause’s NYRA, to enact the Congress ered Wil- Foster, procedures. federal election See son, pre-emption at 60 F.3d 522 U.S. 118 S.Ct. 464. Foster consid analysis applicable under that Clause is congressional ered whether a enactment begin analysis our as the Court here. We Foster, superseded a Louisiana statute regulating guided by in Election Clause did preemption principles. Accord Harkless the same federal election procedure. Id. Brunner, 68-69, Cir. at Specifically, S.Ct. 464. sec 2008) (declining apply Supremacy tions 1 and 7 of Title 7 of the U.S.Code in preemption principles analyzing Clause congres established the date for federal NVRA). preemptive effect of the Tuesday sional elections as the after the 69-70, Monday first in November. Id. at B 118 S.Ct. 464. A Louisiana statute estab first Supreme explained Court open primary lished an October where principles preemp of Elections Clause state voters could elect the candidate who Siebold, case, In that tion 100 U.S. 371. fill would the offices United States Sen relationship the Court likened the between Representative. at ator and Id. passed by Congress the laws and the state Only open primary 464. if the S.Ct. failed legislatures under the Elections Clause to majority to result in a candidate would “prior subsequent enactments of the top run off election between the two candi at legislature.” same Id. 384. “The State Congress’s specified dates be held on elec Congress laws which sees no occasion to day. response challenge Id. In to a alter, stand, which it allows to but are voters, by Louisiana the Court unanimous adopted by Congress.” effect Id. at 388. ly held that the state and federal acts token, just By subsequent legisla this conflicted, and thus invalidated the Louisi required “entirely ture is not to make an 74, 118 ana Id. at law. S.Ct. modifying new set” of laws when those of concluding Congress’s power to prior legislature, Congress neither is re ar- preclude beyond the state was quired wholly take over the statute regulation rejected procedures gument, of federal election when choos- the Court the state’s quent legislature. en enactment the same claim that its statute and the federal harmoniously. Foster, 74,118 actment could be construed S.Ct. 464. With assert Id. at 118 S.Ct. 464. Louisiana mind, wheth- approach we consider con open primary system that “the ed operate er the NVRA and electing the ‘manner’ of fed cern[ed] harmoniously single procedural in a officials, eral not the ‘time’ at which the registration. for federal voter scheme place.” elections will take Id. at 464. The Court discarded this “at C tempt to draw this time-manner line” as here, question To resolve the we must “merely wordplay” “imaginative and an first both the federal and understand state characterization” of the statutes. Id. at registration procedures voter issue. 72-73, Building upon S.Ct. 464. Ari- explained changes We earlier to Siebold, principles from the Court declined registration Proposi- zona’s statutes under adopt interpretation to a strained 200, incorporated requirement which a potential disagree a statutes to reconcile registrants documentary proof submit Rather, empha ment. id. See Court citizenship register in order vote. Congress’s unique authority plenary sized I; supra §§ Part 16- See Ariz.Rev.Stat. supplant state rules but 152, step 16-166. Our next is to examine conscript carry states to out federal enact the scope of the NVRA. Clause, ments under the Elections and that, enough found it a natural under read

ing, the state and federal enactments ad procedures dressed the same and were in because, Congress enacted the NVRA (noting conflict. Id. that the Louisiana’s reasons, among other determined that regulation timing addressed elec “discriminatory registration and unfair obviously” “quite tions as as the federal and procedures laws can have a direct and one). Refusing “par[e] [the statute] damaging effect on in participation voter bone,” down to the definitional the Court dispropor- elections for Federal office and held that the state enactment was void. tionately by harm participation voter vari- 72, 74, 118 Id. at S.Ct. 464. groups, including ous racial minorities.” Reading Siebold and Foster to § 1973gg(a). 42 U.S.C. gether, following approach we derive the Initially, Congress attempted to address for considering whether federal enact problem by enacting legislation ments under the displace Elections Clause permitted government prospective procedures conducting state’s federal challenge discriminatory prac- voters to First, Siebold, suggested elections. in in tices the courts. See South Carolina

we consider the state and if federal laws as Katzenbach, 301, 313, 383 U.S. 86 S.Ct. they comprise single system of federal (1966) 803, 15 (discussing L.Ed.2d 769 Siebold, procedures. election 100 U.S. at Rights Civil Act of which “authorized complements 384. If the state law Attorney injunctions General to seek congressional scheme, procedural we treat public against private interference it as if it were adopted Congress as right grounds,” with the to vote on racial part of Congress that scheme. See id. If Rights Act and the Civil which subject addressed the same as the state voting “expedited hearing of cases be- law, we consider whether the act federal three-judge fore courts and outlawed some act, has superseded the state based on a disqualify of the tactics” used to African reading natural of the two and view laws ing the federal act as if it were a voting subse- Americans from federal elec- tions).10 discriminatory voting qualifications prerequisites or elimination of “re- abridgement through litigation, sulting howev- the denial or voting practices er, expensive, right citizen of the United States to [mean- was “slow and vote on account or race or color.” the States were creative contriv- while] violating to continue ing new rules While considered on the whole to Fourteenth] Amendments] Fifteenth [and eliminating be a successful tool in the more face of adverse federal court de- discriminatory voting procedures, obvious Utility Nw. Austin. Mun. Dis. crees.” NAMUDNO, see 129 S.Ct. at — (NAMUDNO), v. Holder No. One registration VRA failed to address voter 2508-09, -, U.S. procedures, imposed “complicated which (internal (2009) quotation L.Ed.2d procedures, maze of local laws and in some omitted). registra- To limit voter marks prac cases as restrictive as the out-lawed tion, local officials defied court edicts some tices, through eligible which citizens had to “simply registration or closed their offices navigate right in order to exercise their Katzenbach, voting to freeze the rolls.” vote,” 103-9, (1993), H.R.Rep. No. at 3 Congress’s S.Ct. 803. U.S.C.C.A.N. Between attempts to “authoriz[e] 1993, Congress 1988 and held series of impact officers ... had little on federal hearings reforming focused on the voter Nearly maladministration.” Id. local registration process to address in War, century registration after the Civil of of creasingly pressing issue low voter turn in eligible African American voters some Reno, out in federal elections. Condon v. fifty percentage points was still low- states (D.S.C.1995). n. 2 F.Supp. 913 949 eligible er than that of white voters. Shaw that, Congress eighty found while over Reno, 630, 640, v. 509 U.S. 113 S.Ct. percent registered of citizens voted (1993). 125 L.Ed.2d 511 elections, only sixty percent Presidential Congress approach eligible registered. tried a different to voters were H.R.Rep. 103-9, addressing problem by passing opinion polls this the No. at 3. Public (VRA), Act Voting Rights primary eligible of 1965 Pub.L. showed reason 437(codified 89-110, voting at 42 citizens were not was the failure to No. Stat. VRA, register. § seq.). acknowledging U.S.C. 1973 et enacted Id. While authority Congress’s many Fif- this failure attributable to fac under was control, powers, Congress teenth Amendment enforcement is tors outside its enacted problems “a complex stringent scheme remedies NVRA address within control, voting namely regis aimed areas where discrimination its those barriers to Katzenbach, flagrant.” imposed by govern has been most 383 tration that were state 308, 315, enacted, U.S. at 86 S.Ct. 803. As ments. See id. Under the Elections Clause, suspended literacy Congress the power pro the VRA use had “to tests, 4(a)-(d), jurisdic- § required complete congressional covered vide a code for elections, pre-clear changes voting proce- places, tions to not as to times and 5,§ for ... practices, provided registration.” dures and and but relation to Smi Holm, 355, 366, ley of federal examiners to appointment 285 U.S. (1932). in registering qualified Through assist citizens to 76 L.Ed. 795 vote, 6, 7, 9, authority, Congress §§ 13. Section enacted the NVRA to VRA provide remove these and “to permits brought also actions to be void obstacles considering passed analysis applicable 10. Neither of these Acts were under is not to cases authority Elections the substantive these enactments. Clause, and therefore the Elections Clause prerequisite to vot- registration voter registering for to vote systems simplified Fordice, procedures regis- ing) “shall establish Young in federal elections.” 273, 275, according elections 137 ter” voters for federal omitted). (1997) (emphasis three methods “notwith- to the NVRA’s L.Ed.2d law, Federal or standing any other State reg- other method of voter addition provided for under State law.” istration comprehensive is a scheme The NVRA § 1973gg-2(a). changes to fed- enacting significant three procedures na- registration eral election registration of voter The first method (1) it creates a standard “Feder- tionwide: 1973gg-3. § This described in Section (described below) registering for al Form” for a provides any application section (2) voters; it states to requires federal license submitted to a state motor driver’s register voters for procedures establish an authority appli- vehicle “shall serve as pre- according elections to three federal registration respect with cation voter (3) methods; regulates and scribed unless the to elections for Federal office voting lists. See 42 U.S.C. maintenance of registra- applicant sign fails to the voter § 1973gg seq. et application.” 1973gg-3(a)(l). This the statute informal 1973gg, setting provision forth the act’s earned its Section title, the “Motor Voter Law.” United “Findings Purposes,” provides (1st Lam, “findings” NVRA. The States v. overview of the Cir.1999). statute, subsection, § the voter 1973gg(a), articulates Con- Under registration part form must be of the driv- gress’s promote registra- intent voter “may “discriminatory application, generally er’s license tion and to address require any duplicates “purposes” unfair laws.” The information subsection, pre- required § information in the driver’s license 1973gg(b), provides § portion 1973gg-3(c)(2)(A). of the of the of the form.” operative view sections NVRA, the content of the listing Congress’s goals of increas- Section 3 also limits minimum ing registration enhancing necessary prevent voter and the form to the to to participation eligible (relating duplicate registrations of votdrs to voter and enable 1973gg-2- eligibility § the to assess the through Sections state 1973gg-5) goals ensuring applicant.12 § the of the and accuracy registration protect- of rolls and registration, The second method of voter ing integrity process the electoral 4, 1973gg-4, requires § in set forth Section 6, § (relating 1973gg-6). to Section by mail register states to federal voters 4(a)(1) using § Form. 1973gg-2,

Section sets forth the the Federal Section scope applicability accept and of the act.11 Each states that State shall and “[e]ach registra- (except require for those that do not use the for the [Federal Form] state NVRA used enable State election officials to assess 11. Section 1 of the defines terms do § 1973gg-l. eligibility applicant in statute. and to admin- registration parts and ister voter other 1973gg-3(c) pertinent provides, 12. Section in process; the election part: (C) a statement that— shall include (in- (i) eligibility requirement states each registra- The combined motor vehicle-voter cluding citizenship) tion form: (ii) appli- (B) contains an attestation that the may require only tire minimum amount requirement; cant each and necessary meets such of information to—(cid:127) (iii) requires signature applicant (i)prevent duplicative registrations; voter penalty perjury[.] and under city county (including marriage clerks for Federal of- and of voters elections 4(a)(2) that, bureaus), hunting li- fishing license and provides “[i]n fice.” Section bureaus, using government Feder- revenue of- accepting and cense [the addition offices, fices, Form], may develop compensation and use unemployment al a State that meets all registration provides form services [other offices] mail voter of the Federal Form. Section persons reg- the criteria” with as voter disabilities” 4(b) availability of the Feder- agencies. 1973gg-5(a)(3). § discusses istration equivalent: and the state States al Form requires designated agen- Section 5 each registration mail form make the must cy provide applicants with the Federal through govern- for “available distribution it, Form, help complete them and man- entities, private particular with mental “[a]cceptance completed dates voter them emphasis making on available forms for transmit- application registration programs.” voter organized appropriate tal to the State election offi- exceptions § certain 1973gg-4(b). With § cial.” 1973gg-5(a)(4)(A). As Section here, permits pertinent statute not designated agency may state also by require register citizens who states form, distribute a state but “if it is person they if have not mail to vote equivalent” Federal Form. jurisdiction. in the previously voted 1973gg-5(a)(6)(A)(ii). § § 1973gg-4(c). 6, § 1973gg-6, proce- Section establishes regis- method of federal voter The third accuracy dures to enhance the and integri- is mandated Section tration ty voting of the official lists both remov- 1973gg-5, requires which states to des- ing ineligible preventing voters and regis- ignate certain state offices for voter eligible mistaken removal of voters. Targeting poor persons tration. “the 7, § 1973gg-7, Section describes how disabilities who do not have driver’s with governments federal and state will de- into contact licenses and will come Form, termine the contents of the Federal agencies, H.R.Rep. motor vehicle with” and otherwise coordinate administration of 103-66, (1993), reprinted No. at 19 procedures. the NVRA’s This section del- 140, 144, this section U.S.C.C.A.N. egates the creation of the Federal Form to provide reg- for federal requires states the federal Election Assistance Commis- istration at “all offices in the State that (EAC).13 1973gg-7(a). § sion The section assistance,” 1973gg- § provide public “in requires the EAC to work consultation 5(a)(2)(A), and “all offices the State with chief officers of the election the provide programs pri- State-funded crafting States” in the Form’s contents. marily providing to engaged services Id. disabilities,” 1973gg- § persons with 5(a)(2)(B). parameters Section 7 out designate The state also also sets for shall, may, what government additional offices such as the Federal Form and libraries, schools, public Among things, offices of cannot include.14 other the “public (1) may responsibilities require only identifying the EAC were for- 13. The of such infor- (including signature merly ap- held the Federal Election Commis- mation of the the (FEC). Congress passed Help plicant) (including sion When the and other information (HAVA), relating previous registration by America Vote Act Pub.L. No. 107- data to the 252, 1666, 2002, necessary Stat. it created the applicant), to enable as is the EAC, eventually § which appropriate U.S.C. State election official to assess the FEC’s duties under the NVRA. eligibility absorbed applicant the and to admin- registration parts ister voter and other of process; 14. The Federal Form: the election authori tion forms. At the motor vehicle only such “may require Form Federal instance, necessary registration must be ty, is for voter identifying information” as eligibility license part to determine included as of the driver’s allow the state and to administer the vot- cannot applicant and the combined form application of process. and election registration § er require duplicative 1973gg- information. The Federal Form 1973gg-7(b)(l). 3(e)(2)(A). § regulates also NVRA every eligi- as to applicant must inform of eliminat goal Federal Form to meet its citizenship” bility requirement “including ing registration. obstacles to voter See attest, under require applicant and Thus, § for 1973gg(b)(l)-(2). the NVRA applicant perjury, penalty including any identify bids EAC 1973gg-7(b)(2). § requirement. meets each “necessary ing beyond information any require- “may The form not include election offi appropriate enable the State au- or other formal ment for notarization eligibility applicant cial to assess 1973gg-7(b)(3). § thentication.” and registration and to administer voter parts process.” other of the election 8, § 1973gg-8, requires states Section sum, 1973gg-7(b)(l). every § court an officer to serve as chief elec- designate concluded, regu- § the act has 1973gg-9, tion official. Section to have considered pro- purpose lates civil enforcement of the NVRA’s the NVRA’s central increase designates private right by streamlining voter visions voter See, action under the statute. Section Hark- registration procedures. e.g., penal- less, Clarke, criminal 1973gg-10, 449; § sets forth the 545 F.3d at Welker v. (3d Cir.2001) (“One non-compli- for election fraud or other ties 239 F.3d 598-99 ance with the statute. purposes central was to dra the NVRA’s matically opportunities for voter expand indicates, the thrust of As this overview ”); registration .... in Action Disabled to increase federal voter the NVRA is Hammons, Metro. N.Y. v. 202 F.3d registration by streamlining registra- (2d Cir.2000); Lara, 181 F.3d vein, process. In this the NVRA re- (“The heightening NVRA is addressed quires registration opportu- states to make popular participation overall in federal available, widely nities the motor vehicle Coal, ”); elections.... Nat’l Students mail, bureau, § § 1973gg-3, by 1973gg-4, for Legal with Disabilities Educ. & Fund service, assistance, public disability and at Def. Cir.1998) Allen, offices, designated other state (“Congress passed ... to en NVRA increasing 1973gg-5. Along with registration for courage increased voter opportunities registration, the NVRA completing registra- involving elections federal offices” and “to eases the burdens (2) (i) requirements penal- eligibility [voter shall include statement that— 1973gg- § applications, (A) ties for false eligibility requirement specifies each 6(a)(5)] (including citizenship); that, (ii) applicant a statement if an de- (B) appli- contains an attestation that the vote, register that the clines to the fact requirement; and cant meets each such applicant register has declined to will re- (C) requires signature applicant, of the only and will be used for main confidential perjury; penalty under registration purposes; voter and (3) may any requirement include for (iii) applicant that statement if an does authentication; notarization or other formal vote, register to the office at which the and registration applicant appli- a voter submits include, (4) print shall that is identical to cation will remain confidential and will be portion that used in the attestation of the registration purposes. used for voter application'— 1973gg-7(b). § vote.”); cant), register necessary appro- as is to enable the make easier Miller, priate State election official to assess the ACORN Cir.1997) (“In § to reinforce the attempt eligibility applicant.” 1973gg- 7(b)(1). qualified by citizens to vote reduc- right of The Federal Form for accounts ing registra- the restrictive nature of voter eligibility by concerns requiring applicants requirements, Congress passed attest, penalty perjury, under [NVRA].”). they every eligibility requirement. meet 1973gg-7(b)(2). § Acknowledging in ensuring eligibili- states’ interests voter

Turning ty, Congress now to our Elections Clause allowed give states to their analysis, Proposition consider whether input we on the contents of the Federal Form documentary proof citizenship 200’s re- advisory capacity in an to the EAC. by quirement superseded is the NVRA. As 1973gg-7(a)(2). § Given the NVRA’s com- approach indicated derived from prehensive regulation development Foster, II.B, supra Part Form, Siebold and see of the Federal there is no room for we consider the state and federal enact- impose sponte Arizona to sua an additional together they composed ments as if a sin- requirement identification a prerequi- as gle system procedures. of federal election registration site to federal voter regis- Next, whether, naturally, we consider read using trants If form. viewed as a provisions complement Proposi- the NVRA second enactment legislature, the same registration requirements tion 200’s voter clearly Proposition NVRA subsumes interpre- or them. If a natural supersede documentary requirement 200’s additional language tation of the of the two enact- registrants on using the Federal Form. to the ments leads conclusion Siebold, See 100 U.S. at 384. consistently state law does not function conclusion, supporting Further harmoniously overriding and with the fed- (and value of the Federal Form hence a scheme, replaced by eral then it is NVRA) lost, centerpiece of the would be federal statute. Congress’s goal to eliminate states’ discriminatory registration or onerous framework, re- Applying this we con vitiated, quirements if agree we were to Proposition documentary clude that 200’s with Arizona states could add citizenship requirement proof conflicts they requirements saw fit to text, structure, pur with the NVRA’s through for federal elections the Federal First, pose. precise NVRA addresses instance, Form. For prohibits NVRA ly topic the same as 200 in requiring the Federal Form from notariza- namely, greater specificity, the information tion or other such formal authentication. required that will be to ensure that an § 1973gg-7(b)(3). If the NVRA did not eligible to vote in federal elec applicant supersede additional Foster, requirements state on tions. See U.S. Form, registrants using the NVRA, Federal § 1973gg-7, 464. Section 7 of the asserts, Arizona then states would be free spells both out the information that an impose requirement a notarization as a applicant provide register must in order to prerequisite “acceptance] to their to vote a federal election and limits what form, 1973gg-4(a)(l), use” of the see require. “may the Federal Form can It though requirement even such a would require only identifying such information intent in (including directly Congress’s the contradict signature applicant) in form (including prohibiting requirement and other information data re such lating registration by to itself. previous appli- supplemental proof

Moreover, failing provide in to statutory language specific they properly have com- NVRA, citizenship, an unstrained if when read in manner, timely inconsistent with the Federal pleted natural and submitted The NVRA man- de- enactment. Form.” Faced with this Registration the state accept and use” the nial, that states “shall implement dates proceeded Arizona by applicants register Form when sep- Federal 200 as a requirement Proposition in requires § It likewise 1973gg~4(a). mail. registra- to voter arate state condition completed Federal “acceptance” of on tion, imposed even those which was which must buildings, at state office Form in elections to vote federal registering appropriate to the State be transmitted If the NVRA with the Federal Form. 1973gg-5(a)(4)(iii). § election officials. state-imposed require- supersede did not implement must these methods The state registration, ments for federal voter voters, as well as com- registering the EAC’s con- type of end-run around registration motor vehicle-voter bined would become process sultative form, 1973gg-3(c)(l), “notwithstanding § norm, over the Congress’s control law,” § 1973gg- any other Federal or state registration federal requirements 2(a). contrast, Proposition pre- By that the Elec- crippled. would be Given appli- registering the state from cludes Congress ultimate au- gives tions Clause and submitted completed cants who have thority registration the federal voter over applicants Form unless such the Federal process, Colegrove, 328 U.S. in, designated mail or submit at the also reading of the NVRA such documentary building, proof of state office is untenable. 16-152, §§ 16- citizenship. Ariz.Rev.Stat. in broadly, Proposition 200 is not More falls under the requirement 166. Such a harmony with the intent behind by the displaced umbrella of laws NVRA’s NVRA, state-imposed which is reduce “notwithstanding” language. in- registration. to federal It is obstacles Structurally, allowing impose states to by requiring documentary disputable requirements for federal voter their own citizenship, Proposition 200 cre- proof of registrants using on registra- state hurdle to ates additional nullify Form would the NVRA’s Federal overview, supra tion. As indicated our soliciting input, for state procedure C.2, Part to the the NVRA was sensitive aggrandize the states’ role direct con- regis- of a voter multiple purposes federal authority pre- of the lines of travention scheme, including the need “to es- tration by permits 7. The NVRA scribed Section increase procedures [would] tablish changes to the Federal suggest states to eligible regis- citizens who the number of Form, ultimate au- gives but the EAC ter to vote elections for Federal office” thority adopt reject sugges- or those protect integrity and the need to “the Here, 1973gg-7(a). example, § tions. § process.” 1973gg(b). the electoral 200, Arizona enacting Proposition before pursuant balance struck the EAC require- include a petitioned the EAC to 1973gg-7(a) require applicants was to ap- ment in the Federal Form that penalty of citizenship attest to their under citi- plicant present documentary proof of presenta- perjury, require but not analogous required to what is zenship documentary proof. Proposi- Id. tion of Proposition proce- 200. Pursuant to the requirement additional is not 200’s NVRA, dure set forth in the the EAC consistent with this balance. suggestion denied the and warned argues Arizona “may register Arizona not refuse to indi- election for does not conflict with the NVRA because viduals to vote a Federal

1183 law,” § expressly precludes 1973gg-2(a). nowhere state or federal Un- the NVRA Congress’s expansive der Clause Elections imposing requirements addi- states power, we must hold Arizona’s documenta- those of the Federal Form. Focus- tion to ry citizenship proof requirement, Ariz. 4 phrase the NVRA Section ing on 16-152(A)(23), 16-166(F), §§ Rev.Stat. su- requires “accept states to and use” which perseded by the NVRA.15 register appli- Form to mail the Federal cants, 1973gg-4(a)(l), Arizona ar- see process complies gues registration that its remaining arguments Arizona’s do not with the NVRA because the state makes persuade to reach a us different conclu- applicants, Federal Form available to First, sion. Arizona that an in- contends the Form as it is accept long and will so terpretation precludes of the NVRA that citi- accompanied by documentary proof of imposing states from reg- additional voter zenship. requirements istration for federal elections Foster, petitioners Arizona Like Congress is unreasonable because could of the interpretation has offered creative not have to register “any intended states federal statutes to avoid a direct state and all” applicants who submit the Feder- Foster, at conflict. See al Form without outlet for the states counsels, 464. But as Foster we do S.Ct. applicants’ qualifications. check those not strain to reconcile the state’s federal Arizona asserts that because the act con- regulations Congress with election those templates applications that some will be Clause; rather, we (which under the Elections rejected, § 1973gg-6(a)(2) see re- registra- consider whether the additional quires notify states to “each applicant of requirement by Proposition disposition application”), mandated require cannot NVRA states to automati- procedures 200 is harmonious with the cally register every using individual by Congress mandated under a natural Federal Form. reading of the at statutes. See id. Siebold, 464; U.S. 384. As argument This reflects misun above, im- explained allowing Arizona to derstanding of the NVRA. As Section 6

pose provi- 200’s demonstrates, register states need not ev top sions on of the Federal Form conflicts ery applicant completes who and submits purpose, procedural with the NVRA’s § 1973gg-6(a)(2). the Federal Form. See framework, specific requirement and the prove eligibility still Voters have their that states use the Form or its Federal pursuant Contrary to the Federal Form. assertion, equivalent, “notwithstanding any other to Arizona’s does not NVRA Glickman, 15. Because we reach our conclusion based on Forest Res. Council v. statute, (9th Cir.1996), language Congress and structure of the we shows that re- rely interpretation jected do not on the EAC's an amendment to the NVRA which legislative history. provided “nothing NVRA or the NVRA's Be- would have in this Act parties argue import prevent requiring presenta- cause the of these shall a State from sources, merely relating citizenship we note that both are consis- tion of documentation holding. supra applicant registration," tent with our As discussed of an for voter 103-66, (1993), page H.R.Rep. the EAC construes the NVRA as No. permitting accep- states to “condition U.S.C.C.A.N. 148. The conferees ex- upon receipt plained tance of the Federal Form that the amendment was not "consis- proof.” respect legislative purposes additional With tent with the of” the NVRA and eliminate, history, Report, effectively seriously the NVRA's Conference "could or inter- with, registration program which we have held is the most authoritative fere the mail material, see, legislative e.g., and reliable Nw. Act.” Id. by Arizona’s claim persuaded are not who we register applicants to require states permitted impose to that states must be forms are incom- or whose ineligible, are to address the requirements additional inaccurate, illegible. or plete, issue. same Second, that states must argues Arizona Third, suggests Congress’s Arizona own meth- to exercise their have freedom HAVA, § U.S.C. 15301 et enactment as a determining eligibility voter ods for Congress passed after which seq., fraud. against voter protection NVRA, gloss on the NVRA’s provides con- Edgar, the Seventh Circuit ACORN Arizona, meaning. According to HAVA argument. a similar and discarded sidered Congress’s permit intent to demonstrated case, claimed that the state In that eligibility to of voter states ensure of the NVRA component “Motor Voter” states registrants, and made clear that to voter fraud.” 56 F.3d “opens the door requirements exceed the minimum could rejected argument at The court registra- in their carrying the NVRA out contains a part because “federal law functions. fraud, against vote safeguards number of conjectural they are entirely it is disagree. Congress We enacted HAVA law protections [state] inferior to the 2000 Presidential elec- reaction to the (citation omitted). at 795-96 offers.” Id. ensuing controversial Florida tion and the NAACP recount. Fla. State Conference of the same conclusion We reach 1153, 1155 Browning, Congress here. was well aware of Cir.2008). operate The NVRA and HAVA when it problem passed of voter fraud reg- while the NVRA separate spheres: NVRA, by the numerous as evidenced is con- registration, ulates voter HAVA act. protections fraud built into the For updating technologies election cerned with one, criminal applies federal Section polling election-day and other issues penalties persons knowingly who places. registration in fraudulent willingly engage here, with As relevant HAVA interacts Second, § 1973gg-10(2). Sections tactics. the NVRA on a few discrete issues. require 3 and 7 the Federal Form and the First, added two check-boxes to the HAVA motor combined vehicle-voter Form, requiring applicants Federal to contain an attestation clause that form they check off whether are citizens requirements eligibil sets out the for voter they and whether are old United States 1973gg- §§ ity. 1973gg-3(c)(2)(C)(i)-(ii), 15483(b)(4). § enough vote. U.S.C. 7(b)(2)(A)-(B). Applicants required are sign penalty perjury. these forms under Second, permits registrants HAVA mail 1973gg- §§ 1973gg-3(c)(2)(C)(iii), have not voted in a federal previously who 7(b)(2)(C). Third, permits states verifying Section to submit documents election verify identity of vot- eligibility Federal identity along their with the 15483(b)(3). reg- § by requiring ers first-time voters who First-time voters Form. place appear polling advantage provision ister mail to of this do who take identity can person, where the voter’s have to their identification when show Last, id., 1973gg-4(e). § they polling place, step be confirmed. Sec- arrive at the requires give may require tion 6 states to notice to un- that the states otherwise regis- NVRA, § their applicants disposition 1973gg-4(c). see This der tration, however, may not, which states use as a means option prerequisite registrations. who registration, applicants to detect fraudulent See successful Congress dealt not to documentation 1973gg-6(a)(2). Because choose submit NVRA, registered. of voter fraud in the still be with issue require- refer to Third, requires assign states to this section HAVA’s HAVA capa- “unique update equip- identifier” ments that states election registrant each (such against by replacing punch cross-checked voters’ ment as card being ble 15483(a)(1)(A). § polls. voting systems) voting sys- identities and meet other unique § that the identifier provides permits tem standards. HAVA While applicant’s driver’s license may be the their own technological states to institute digits appli- the last four number or improvements, and administrative it does security number. See cant’s social impose them to additional re- not allow 15483(a)(5)(A). But nothing § HAVA registration pro- the voter quirements on require to these forms of allows the state Indeed, cess established the NVRA. prerequisite registra- as a identification precludes adding section itself states from Rather, applicant possesses if the tion. requirements “inconsistent with the Fed- license nor social securi- neither a driver’s requirements eral under” the NVRA. card, assign requires the state to ty HAVA Moreover, § expressly pro- 15484. HAVA “a which will serve applicant number “nothing vides that be [in HAVA] applicant registra- for voter identify require or construed authorize conduct 15483(a)(5)(A)(ii). § The purposes.” tion prohibited under [the NVRA].” is not used to check the unique identifier 15545(a)(4). § language This indicates registrant, but rather to citizenship intent Congress’s prevent was to HAVA at the appears that the voter who ensure interfering comprehen- from with NVRA’s registered to polls person is the same who registration system. sive voter According- vote. ly, Arizona’s reliance on HAVA is unavail- ing.

Nor does allow states to HAVA registration requirements the voter exceed D making this set forth in the NVRA. Finally, argues that Arizona we are fore- points provision Arizona to the argument, reviewing closed from Gonzalez’s NVRA stating that: HAVA prior claim panel’s ruling because by this ti- requirements established I, prelimi- which occurred at the Gonzalez requirements are minimum and noth- tle case, nary injunction phase already this in this title shall be construed to ing not super- decided NVRA does establishing elec- prevent State changes sede the Arizona’s technology and administration re- system under 200. See Gon- that are more strict than the quirements I, F.3d at 1050-51. Arizona zalez requirements long so as such State re- prior ruling dispositive, asserts that this is are not inconsistent with the quirements ground and there is no for the court to requirements Federal under this sub- reconsider the issue here. [including or law chapter NVRA voting regulations, other federal Addressing argument this re § 15545]. quires applicability us to review the of our law of the case doctrine.16 Under technology But the “election doctrine, requirements” panel appellate referenced “one of an court administration judicial efficiency, principles part pose of a related set of these are 16. Law case principles preclusion that includes stare deci- distinguished by type stage litigation or sis, judicata, estoppel. 3 res and collateral they separately apply, and as a con- in which al., Wm. Moore et Moore's Manual: James sequence policy each has its own consider- Procedure, § & Federal Practice 30.01. ations. Id. animating pur- Though general linked 800, 816, Operating Corp., dus. ques rule reconsider general as a will not (1988) 2166, 100 L.Ed.2d 811 on a panel has decided which another tions omitted). (internal quotation marks These Hegler case.” appeal in the same prior Cir.1995) judicial are concerns to sound paramount Borg, administration, (citation appellate court “[a]n marks quotation and internal omitted). efficiently duty pro its perform cannot applies prior The doctrine law, if a expeditious justice question to all issues of even vide pure based on decisions here, and decided were to made, preliminary- once considered those upon case litigated be anew the same of the same case. See stages of review every appeal.” Legal subsequent Fund and Kim Action Ranchers Cattlemen (9th Callahan, 768, 771 Dep’t ball v. 590 F.2d Stockgrowers Am. v. U.S. United of Cir.1979) (internal (9th 1108, quotation marks omit 1114 Cir. Agric., 499 F.3d of ted). 2007). concerns, against these valid Balanced “The effect of the doctrine is however, equally strong considerations are a is particularly when court dispositive, not occasionally pull opposite in the di- judgment, for the reconsidering its own rection. We have held that the of “[l]aw discretion, a court’s law of the case ‘directs ” woodenly in applied the case should not be power.’ limit the tribunal’s it does not way jus- a inconsistent with substantial Bd., Transp. Safety Mendenhall v. Nat’l Miller, v. 822 F.2d tice.” United States (9th Cir.2000) 464, (quoting 469 213 F.3d (9th Cir.1987); Rent-A- 832 see also 605, 618, California, v. 460 U.S. Arizona Center, Canyon Appli- Inc. v. Television & (1983)). 75 L.Ed.2d 318 Inc., Rental, 944 602 ance F.2d words, nothing in the other “there is Con Cir.1991) (“[T]he law of the case is require stitution of the United States equitable ap- doctrine that should not be doctrine], prevent of the or to [invocation unfair.”); Loumar, plied if it would be Inc. allowing past action to be [court] (5th Cir.1983) Smith, 762 modified while a case remains court.” (“The ... law of the case doctrine is not 92, 101, King Virginia, v. West U.S. judicial barrier to correction of error. It (1910). Instead, 225, 54 S.Ct. L.Ed. utility and and is rule of convenience utility typically prudential: the doctrine’s ”). yields adequate reason.... Interests way a courteous and efficient for a “it’s efficiency finality and clash with the of say ‘enough’s when liti enough’ court of the court to not issue responsibility gants prior seek reconsideration inter on the judgments wrong known to be facts (Jef locutory decisions.” v. Wood Jeffries or law. (9th Cir.1997) V), F.3d fries (en banc) J., (Kozinski, (citing dissenting) compromise As a between these cases), grounds by overruled on other interests, countervailing we sometimes Murphy, Lindh exceptional have identified three circum (1997). 2059, 138 L.Ed.2d 481 which, balance, on we deem the stances finality efficiency concerns of and out said, policies animating That op not weighed. Law the case should undeniably the law of the case doctrine are judicial erate as a constraint on review “promotes the fundamental. The doctrine “(1) clearly the decision is erroneous finality efficiency judicial pro where and would work a manifest agitation and its enforcement protecting against cess (2) injustice,17 intervening controlling au- issues.” v. Colt In- settled Christianson cases, prior two different formulations of the set of "[f]or 17. As has been noted in Circuit time, some there have existed in the Ninth in a thority appropriate, misreading makes reconsideration was rooted fundamental (3) substantially acknowledges, different evidence was the statute. As the dissent or V, 1204-05, subsequent at a trial.” adduced see Dissent the NVRA does Jeffries (internal quotation marks give 114 F.3d at 1489 accept states freedom “either” to omitted). Here, ar- “or, and footnote Gonzalez and use the Federal Form in the exception applies. that the first gues alternative,” We develop their form. own See agree. Rather, the id. NVRA commands without exception that accept states “shall” prior panel’s conclusion that Form, use the Federal if they develop state-imposed permits the NVRA docu form, their own it can “in be used mentary proof citizenship requirements addition to” accepting using the Fed- registrants using on the Federal Form was Form, eral and still all must meet provisions based on three of the statute. criteria of 1973gg-4(a). Section See First, panel indicated that under the Thus, while applies Section of the NVRA ‘accept states must “either and use NVRA 7(b) the limitations of Section to the states prescribed mail form the voter respect with to the creation of their own or, in by the Federal Election Commission’ forms, nothing state in the text or struc- alternative, ‘develop the and use [their provision ture of supports reading either form,’ long as as the latter conforms own] 7(b) Section the giving states au- I, guidelines.” to the federal Gonzalez 485 thority over or discretion to modify the 1050(second original) at alteration in F.3d Federal Form. prior panel Insofar as the (citations omitted). Second, panel the as portions referred to of the NVRA that “prohibits serted the NVRA states Form, relate to the Federal see Gonzalez requiring from the form to be notarized or I, excerpts 485 F.3d those are formally otherwise authenticated.” Id. EAC, solely directed at the not the states. Last, the panel the described NVRA as § 1973gg-7(a)-(b). See provisions These “permit[ting] ‘require[ such ] states “plainly cannot be said to ... allow states ... identifying necessary information as is require their citizens to present evi- ... officials] to enable election to assess ” (al citizenship registering dence of when eligibility applicant.’ the Id. vote” for federal elections via the Federal in original). Construing terations these Form. Id. at 1050-51. provisions together, panel concluded plainly contemplates that the statute allow analysis The dissent takes issue with our ing require states to voters to present at panel’s of the prior opinion, suggesting citizenship least some evidence of at the may that the panel using have been “either registration. time of Id. at 1050-51. or, ... conjunctive in the alternative” in a may apparent As be from our Dissent at disagree. NVRA sense. 1203-05. We analysis supra, prior panel’s prior panel’s conclusion The statement that can states may Reg. Planning Agency, circumstances in which a court decline hoe (9th Cir.2000) (citations to follow the law of the case. The first formu- n. 43 and brackets may depart ... lation states that court omitted), grounds, on other affd previous the law of the case if ‘the decision (2002); L.Ed.2d 517 see clearly erroneous and its enforcement would Mendenhall, also 213 F.3d at 469 & n. 2. in As contrast, injustice.’ work a manifest noting resolving the other cases but not second formulation states that a court conflict, apparent we need not settle this issue decline to follow the law of the case if 'the case, present grounds in the because there are clearly first decision was 'a erroneous' or satisfy exception ” under either formula- injustice

manifest would otherwise result.’ the standard. tion of Council, Tahoe-Sierra Preservation Inc. v. Ta- Reasoning from a fundamental misread- Form and use” the Federal accept “either ” “or, develop statute, and use prior in the alternative reached ing panel reasonably inter- cannot be their own form a conclusion that was clear error. See accept mean that states can both preted to text, V, 114 F.3d at 1489. The Jeffries devel- the Federal Form and also and use structure, sim- purpose NVRA Indeed, such their own form. op and use prior panel’s interpre- cannot bear the ply contrary to the interpretation would be an Moreover, represents tation. this case logic; prior panel based prior panel’s circumstance,” the ef- “exceptional where require that states could its conclusion decision, it to fect of the erroneous were Form to registrants using Federal stand, injustice. would result in a manifest identification on the show additional 1492. Not does the erro- Id. require that states could use of ground implementa- impede neous conclusion the Federal their own forms lieu of enactment, major congressional tion of Form. significant inequity to citi- poses but upholding prior another basis for As the state law required zens who are under suggests that panel’s opinion, the dissent not exist navigate obstacles do conclusion was correct prior panel’s pursuit law in of their funda- under federal erroneous, although reasoning was be- its (stat- right to vote. See id. at 1492 mental §in “accept 1973gg-4(a)(l) cause and use” injustice may found ing that manifest be “accept mean ... for a can be read to a challenged where the decision involves it particular purpose not have be [but] inequity”). Though we are “significant satisfy purpose.” Dissent sufficient to courts approach sensitive to the cautious words, ar- at 1206. In other the dissent deciding in to alter an earlier although required states are to should take gues Form, “accept decision, and use” the Federal the prior because the decision panel’s require pro- them free to NVRA leaves only clearly a in this case not reached additional spective comply voters to with result, erroneous but reached that result beyond registration requirements those the of a misconstruction of the on basis mandated the Federal Form. As noted statute, convinced that there are we are above, argument. a Arizona makes similar exceptional circumstances to appropriately the lan- argument This is inconsistent with the here. review decision The guage and structure of the NVRA. interpretation strained would dissent’s prior panel’s fact that the de The procedure make the for consulta- EAC’s published opinion contained in a cision was development tion and of the Federal Form not of our discretion to re strip does us 7(a) exercise, an be- empty under Section conclusions, no subse view its because require registrants cause could state published upon decision has relied quent comply require- with additional state prior panel’s proposi the decision for the they register ments even if with the Fed- See, e.g., tion to be overturned. Menden above, Form. As discussed under an eral hall, (reversing prior 213 F.3d at 469 framework, Elections we do not Clause published appellate opinion clearly erro language strain the of the NVRA to render exceptions to the law of neous under the 200. In it harmonious with Tahoe-Sierra, case); 216 F.3d 786- NVRA, “accept the context of the and use” (same). circumstances, such Under thing: can mean one the states must pre law of the circuit doctrine does not “accept use” the Federal Form as a in revising prior decisions clude us from fully registering means of to vote sufficient excep- the established the same case under in federal elections. erroneous, and would not work manifest the law of the case. See tions to Jeffries V, injustice, accordingly had TV 114 F.3d 1484. Jeffries reversing in it. Id. at erred 1489. clear in conclusion was made This Jef- V, sup- decision in V was also highlighting decision The en banc Jeffries fries grounds. Noting on stare decisis workings ported of our law of the case doc- history panels already Circuit had Although procedural two Ninth trine. relied on III at the time complex,18 decisions is the cen- Jeffries Jeffries Jeffries decided, Thompson in see question Borg, tral addressed V was TVwas Jeffries (9th IV, Cir.1996); n. 1 75 F.3d erred F.3d Law- whether Jeffries exception Borg, of an to the law of son v. 60 F.3d Cir. application its 1995), panel panel TV held that we stated that “must be the case. Jeffries prior holding exceedingly altering reverse its careful the law of could Jeffries III, exception opinion” under the first its earlier circumstances “when case, subsequent panels III have to the law of because relied on the initial Jeffries “[ojtherwise, “clearly erroneous and would work a decision” because intra-cir- was TV, arise, injustice.” posing manifest 75 F.3d at cuit conflict serious diffi- Jeffries V, V, rejected In we state’s culties.” 114 F.3d at 1492. Jeffries Jeffries Moreover, reaching should avoid we noted that “to argument we reach its deci- properly, panel the law of the case issue and instead de- sion TV would Jeffries merits, Lawson,” due to cide the case on have had to reverse which could law of the case importance properly three-judge doctrine be done jurisprudence. See 114 F.3d at panel. explaining prior to our Id. the effect of published opinions 1492. After a careful review of the law of applicability on the doctrine, exceptions case, the case we concluded in our to the law of the Jeffries panel notably V that the TV had erred in en banc court in V did not Jeffries Jeffries III, overturning adopt because none of the view of the in dissent that case Jeffries law of exceptions three-judge panel may the the the case were that “no reconsider applicable. Focusing Id. at 1489. on the a rule of law in a prior published embodied case, exception, opinion,” first see id. at 1489 n. we even one in the same Jef- V, clearly (Kozinski, J., concluded that III was not at F.3d Jeffries fries true, a inju- 18. The decisions were series of five would have had a “substantial Jeffries opinions response petition by in to a habeas rious effect” on the verdict. v. Blod- Jeffries III), (9th 1993). gett (Jeffries Patrick Jeffries. Jeffries had been sentenced 5 F.3d 1180 Cir. remand, by jury, petitioned death a but juror for relief on On the district court that held (he juror ground granted the misconduct claimed misconduct had in fact occurred and V, juror jurors petition. had that one informed other that Jeffries's See 114 F.3d at Jeffries robber). a appealed ruling, Jeffries was convicted armed The 1488. After the state this the itself, rejected panel again holding district court this claim on the reversed that it had true, ground interpreted precedent broadly that even if fact would this not too in Jeffries III, appeal, panel have affected the verdict. On a and that the law case did not initially upheld prevent of this court the district reversal of III because that Jeffries conclusion, Blodgett (Jeffries "clearly court’s v. decision was erroneous would Jeffries I), (9th 1992), injustice.” 974 F.2d 1179 Cir. but then work a manifest See v. Jeffries IV), (9th granted petition rehearing (Jeffries Jeffries's for and Wood 75 F.3d 491 Cir. 1996). ground Accordingly, panel reversed itself on the I reinstated its Jeffries precedent. Blodgett petition. conflicted with denial of Jeffries’s habeas Jeffries Jeffries banc, II), 1993). (Jeffries petitioned rehearing 988 F.2d 923 Cir. for en which we determine, panel rejected petition granted among things, then the state’s for other rehearing, reversing but amended II to make whether IV had erred in Jeffries Jeffries misconduct, V, juror clear that III. See 114 F.3d at the claim if Jeffries Jeffries Cir.1995), recognition that federal sum, we held under our en banc dissenting). In treaty have no effect on of a tribe could V, panel can- though in decision Jeffries fishing rights. appeal On from district in opinions prior published not overturn III, following Washington court’s decision cases, may prior overturn a different in prec- that “the conflict our explained we case if the in the same published opinion matter en banc led us to rehear the edent appli- the case are to the law of exceptions three-judge decision.” awaiting without cable. IV, at 798 n. 9. This Washington 593 F.3d case, of this court panel In no other this three-judge panel could not is correct: panel’s decision upon prior relied has split Washing- have resolved the between the NVRA does proposition for the I II. The footnote ton III and Greene require- additional state supersede the dissent relies further ex- on which registration. federal voter ments necessary plained that en banc review was opinion has relied on subsequent no Where because, panel if the could have “[e]ven proposi- published opinion for the prior III under one of the Washington revisited overturned, there is no stare tion to be case, law of the it still exceptions to the consequently the law problem and decisis published bound would have been prohibit does not of the circuit doctrine ... opinion as the law of the circuit ‘[W]e revising prior opinion. depart prece- have no discretion V, in Despite our decision Jeffries ... aspects prior dential of our decision ” by a rule argues that we are bound dissent general law-of-the-circuit rule.’ under prior publish- can never reverse a we (cita- IV, n. 9 Washington 593 F.3d even one in the same case. opinion, ed omitted) (quoting tions Old Person v. face, On its this is the Dissent 1198-99. (9th Cir.2002)). Brown, F.3d proposed rule that was same Jeffries light of the detailed discussion rejected majority. dissent and V regarding exceptions to the law V Jeffries obstacle, To overcome this the dissent case, we cannot read this sentence claims that footnote United States overruling longstanding doctrine. IV), Washington (Washington expressly V was decided on While Jeffries (en (9th Cir.2010) banc), overruled Jef- ground, nothing law-of-the-ease V on this issue. Dissent at 1199. fries Washington turned on the law of the IV disagree. Washington was We IV Washington case doctrine. Nor did IV inconsistency heard en banc to resolve an our en banc expressly consider or overrule conflicting precedent between two lines circuit, in “In our state- decision V. Jeffries question recogni on the whether federal analysis, in passing, ments made without bearing tion of a tribe has a on tribe’s binding precedent.” are not Thacker v. fishing rights spe entitlement to under (In Wireless, LLC), Magnacom re FCC 792-93, treaty. (9th at 798. Cir.2007); cific See 593 F.3d 984, 993-94 see 503 F.3d Washington (Washing Johnson, In v. United States 256 F.3d also United States (9th Cir.2005), III), (9th Cir.2001) (en banc) (Kozinski, 394 F.3d 1152 we 895, ton 915 (“Of intervening recogni course, held that the federal J., every concurring) condition every tion of a tribe “was in is opinion statement of law bind- sufficient treaty fishing it clear that ing panels. for the establishment on later Where But in rights.” casually Id. at 1158. Greene a statement is made and without (Cheene I), 973, analysis, 996 F.2d the statement is uttered in States where United (9th Cir.1993), due passing and v. Bab without consideration 976-77 Greene II), alternatives, (Greene 1266, 1270-71 merely pre- or where it is bitt submit the Federal Form. If this sounds issue that commands legal lude to another attention, may appro- full it be panel’s by design. Congress it is simple, enacted case.”). in a later to re-visit issue priate registration to increase federal NVRA Washington IV footnote on which by streamlining registration process exhibits “reasoned dissent relies neither eliminating complicated state-imposed the case doc- of our law of consideration” registration, hurdles to which it deter- Johnson, trine, F.3d at nor dis- driving mined were down voter turnout id., “germane,” an issue reso- cusses rates. such a imposes fact, Washington IV. In it can lution of light of Congress’s paramount hurdle. informa- accurately more be described as authority proce- to “make or alter” state tional, “casual[,] analysis,” id. without Foster, elections, dures for federal see Moreover, Washington at 915. IV Siebold, 464; at U.S. U.S. question on the whether footnote is silent compre- we hold that the NVRA’s had relied subsequent published opinions regulation of election regis- hensive federal III, Washington which V held on Jeffries supersedes documentary tration Arizona’s excep- preclude application could proof requirement, Ariz.Rev. citizenship V, tions to the law of the case. Jeffries 16-166(F). 16-152(A)(23), §§ Stat. Accordingly, we decline F.3d registration Because we hold Arizona’s sub to hold that this footnote overruled NVRA, requirement void under the we analysis the reasoned of the en silentio need not reach claim that the Gonzalez’s banc court V19 Jeffries documentary proof citizenship require- above, Because, prior as set forth imposes greater registra- ment burdens of issue meets panel’s decision on NVRA tion on naturalized citizens than on non- recognized of a law of the the standard naturalized citizens and burdens the funda- we have discretion to re- exception, case right mental vote violation decision, have chosen to view that and we Equal Fourteenth Amendment’s Protec- that discretion here. exercise tion Clause. E Ill

Perhaps the instructions to the Federal analysis The remainder of our focuses stating: “you can use put Form best solely validity polling on the of Arizona’s application Register in this booklet to: place provision, Ariz.Rev.Stat. 16-579.20 NVRA, your to vote in State.” Under the proof That requires statute voters to show seeking register voters prospective only complete voting polls. need of identification before at the federal elections ing invalidating Proposition 19. The other cases cited the dissent in 200’s support requirement prevent of its version of the law of the circuit does not Arizona by three-judge panels requirement reg- applying were decided its in state election doctrine However, presented could not have overruled V. Arizona has and thus istrations. Jeffries Irrigation Dep’t registration Proposi- v. Interi system See Minidoka Dist. of voter under its of or, Person, (9th Cir.2005); concurrently registering 406 F.3d 567 Old tion 200 as voters Marcos, 1036; elections, Hilao v. Estate 103 312 F.3d not indi- state and federal and has of (9th Cir.1996). that, cases prevails F.3d 767 One of these in the event Gonzalez on cated Hilao, claim, predated See 103 F.3d plans sepa- also NVRA to establish a Jeffries. registration system. rate state We therefore Proposition 200’s do not consider whether only registration requirement, applied Congress's authority under the as 20. Because registrations, preempting reg- is valid under Gonzalez Elections Clause is limited to state elections, remaining claims. ulations related to federal our hold- ITCA's 1192 appeal analysis, required courts are a

Id. first consider Gonzalez’s make We the district court’s decision that “searching inquiry” into “how the chal- § 2 of the Proposition 200 does not violate lenged practice interacts with social [state] VRA, § 42 U.S.C. 1973. and historical conditions to cause an in- equality opportunities enjoyed by” in the

A process. minorities the electoral Far- 2(a) pro Section of the VRA rakhan, (internal 1016, 338 F.3d at 1020 imposing voting qualifi states from hibits omitted). quotation In Gingles, marks 2004). A totality nation on account of race.”21 Farrakhan than other members of the electorate violation prevail participate lenged voting practice to elect ipation” by Cnty., ination or election in the “in race or color.” that the the United States to vote on account of Cir.2003); see also United States v. Blaine subdivision are not § cations abridgement 1973(b). Washington, that its members have less totality Mont., in a 2 claim political representatives of violation of in the § § 2 Said members of a of 363 F.3d result circumstances, 338 F.3d processes circumstances, otherwise, 42 established political equally open right U.S.C. only in the “denial or results 897, of their choice.” State does not of if, 1009, process and [2] leading to protected § any “based on the “if, plaintiff opportunity it is shown 1973(a). or the chal citizen of based on (9th discrimi political require partic ^[1] nom class (9th Cir. can A ly hinder their U.S.C.C.A.N. fects racially polarized, and “the extent to which members of the the extent to which the factors direct courts to consider the history of official state discrimination the circumstances assessment. 106 S.Ct. state or education, against amendments should consider at of nine discussed in the Supreme Court cited 44-45, 28-29 “Senate Factors” because factors political discrimination political process.” 2752(quoting S.Rep. 106 S.Ct. 2752. Relevant (1982), employment and minority ability to the Senate (generally in making subdivision bear the ef- 206-07). minority group with respect voting participate reprinted VRA) Report non-exhaustive list referred to as such areas as in the state is “[T]here health, Id. No. on the they totality effective- 478 U.S. in 1982 97-417, voting, in the 36-37, courts which here, is no were 1982 of requirement particular number of intent, showing discriminatory majority factors be or that a proved, discriminatory results. See Chisom v. point way them one or the other.” Far- Roemer, 383, 111 501 U.S. (9th Gregoire, rakhan v. 590 F.3d (1991); City L.Ed.2d 348 Ruiz v. Cir.2010) (internal Maria, quotation marks omit- Santa Cir. ted). 1998). alleges Gonzalez 200’s

In applying totality polling place identification test, circumstances “a court must assess requirements § 2 by disparately violate af- impact of the contested or structure voters, fecting unlawfully diluting Latino practice minority opportunities on electoral right providing their to vote and them with objective on the basis of factors.” Thorn 30, 44, opportunity less than other members of burg Gingles, (1986) (internal participate political the electorate to in the quota L.Ed.2d 25 omitted). § 2 conducting process. tion marks Considering statistical evidence approach applies This both to claims of Project Agric. Improvement River & Power 1997). Dist., vote denial and of vote dilution. Smith v. Salt 109 F.3d 596 n. 8 Cir. localized,” River, on fact-based and Salt disparate impact on the existence voters, and the district registrants F.3d at 591. therefore “[d]efer[] Latino We that the limited statisti- determined court superior fact-finding the district court’s ca- registration Latinos’ between disparity cal id, pabilities,” and review for clear error to the rest of voting compared and fact, findings court’s includ- the district statistically significant. was not electorate whether, finding ultimate under the ing its Factors listed Turning to the Senate circumstances, the chal- totality of above, court found that Latinos the district 2,§ Person v. lenged practice violates Old in history a of discrimination had suffered 1119(9th Cir.2000) Cooney, 230 F.3d ability par- their that hindered Arizona 78-79, at (citing Gingles, 478 U.S. process fully, that political in the ticipate 2752). review de novo the dis- We disparities be- were socioeconomic there legal determinations and trict court’s Arizona, in and Latinos and whites tween findings of law and fact. Salt Riv- mixed to have some de- Arizona continues that er, Again, at 591. because 109 F.3d we voting. racially polarized gree Proposition reg- have held that 200’s voter of limited statisti- Despite presence requirements superseded by istration are Fac- disparity and some Senate cal NVRA, II, Part we consider supra tors, however, court concluded the district requirement 200’s Proposition claim failed because there that Gonzalez’s polls, identification at voters show relationship a be- proof no causal was § 16-579. Ariz.Rev.Stat. any alleged and dis- Proposition 200 tween on Latinos. The dis- criminatory impact clearly court did not The district single expert that not a trict court noted concluding that Gonzalez failed to err the re- to a connection between testified Proposition require 200’s establish identification that Latinos show quirement any disparate impact ments caused on La the observed Proposition and under 2,§ prevail plaintiff To under a tinos. voting and in voter difference “a causal connection between prove must Furthermore, the dis- Latinos. rates of challenged voting practice pro and that Gonzalez failed to trict court held River, discriminatory result.” Salt hibited require- 200’s Proposition how explain (alteration omitted). “[A] social and histori- ments interact with the showing disproportionate bare statistical La- impact of discrimination to cal climate minority on a racial does not satis impact a causal voting tino Arizona. Without fy inquiry.” § 2 ‘results’ Id. at 595 voting practice pro- and link between cases). (emphasis original) (collecting result, discriminatory the district hibited prove relationship To that such a causal had not court concluded Gonzalez exists, need not show that the plaintiff in dis- 200 results proven challenged voting practice caused the dis color,” “on account of race or crimination Farrakhan, by parate impact itself. See be de- that the claim must therefore Rather, pursuant F.3d at 1018-19. nied. totality analysis, of the circumstances

B causation plaintiff may prove pointing challenged interaction between the to the § 2 the dis- analysis requires Because such as sur practice and external factors “searching prac- in a engage trict court to discrimination, rounding racial past present tical evaluation showing how that interaction results reality,” Gingles, 478 U.S. discriminatory at 1019. But impact. Id. (internal omitted), a quotation marks totality of the cir- “intensely even under this broad examination is district court’s analysis, require- cumstances the causation IV enjoin ment is crucial: a court I, Gonzalez which considered Gonzalez § 2 voting practice under unless there is appeal and ITCA’s from the district court’s practice evidence that the results in a deni- preliminary injunction, denial of a conclud- al or abridgement rights of a citizen ed that Arizona’s registration identification 1973(a). on account of race or color. If requirement poll was not a tax. See 485 there is no that voting prac- evidence F.3d at 1049. registra- We held that the in any disparate tice resulted such impact, (1) requirement did not force voters there is no violation and thus no basis for “to choose paying poll between tax and injunctive relief. providing proof citizenship they when vote,” register to the standard set forth in correctly The district court applied this Forssenius, Harman v. 541- standard here. The challenged practice at (1965); 85 S.Ct. 14 L.Ed.2d 50 Proposition issue is requirement 200’s (2) and did not “make[] affluence of voters show polls. identification at the To the voter or payment any fee elector- causation, prove Gonzalez had to establish standard,” al as impermissible was held that Proposition 200’s requirement under the Fourteenth Amendment in Har- voters produce must forms of identifica- per Virginia Elections, State Board of tion, Latinos, applied resulted 663, 666, U.S. prohibited Here, discriminatory result. (1966). I, L.Ed.2d 169 Gonzalez alleged Gonzalez complaint his that “La- (internal omitted) quotation marks tinos, among other ethnic groups, are less (brackets in original). likely possess forms identification Here, Gonzalez argue and ITCA required under Proposition 200 to ... cast imposes an unconstitution- ballot,” produced but no evidence sup- poll al tax in violation of the Twenty-fourth porting allegation. The record does Amendment. Separately, ITCA asserts include general evidence of Arizona’s histo- that Proposition 200 poll is also a tax ry of against discrimination Latinos and under the Fourteenth Amendment. Guid- the existence of racially polarized voting. analysis I, ed in Gonzalez we con- But Gonzalez adduced no evidence that clude that Proposition polling place 200’s ability Latinos’ or inability to obtain or identification requirement poll is not a tax possess voting identification for purposes under either constitutional provision. (whether or not interacting with the histo- ry of racially discrimination and polarized A voting) resulted in having op- Latinos less Twenty-fourth The portunity to participate political pro- Amendment pro- vides that: cess and to elect representatives of their evidence, choice. Without such we cannot right of citizens of the United say that the district finding court’s States to vote in primary or other Gonzalez failed prove causation was President, election for President or Vice clearly erroneous. Therefore we affirm for electors for President or Vice Presi- the district dent, court’s denial of this claim.22 or for Senator or Representative argues 22. Gonzalez also that the district court cause Gonzalez’s failure to show causation is evaluating erred in however, one of the Senate Factors dispositive, we need not reach these concluding and in disparate impact that the issues. statistically insignificant. on Latinos was Be- 538, or residence.” Id. at 85 S.Ct. 1177. not be denied Congress, shall for or enunciated the rule that a state by the United States Court abridged pay any poll failure to “a by impose requirement reason of not material State tax or other tax. who solely upon those refuse surrender Const, right their constitutional to vote in federal amend. XXIV. U.S. paying poll elections without a tax.” Id. argue requiring not that does Gonzalez 542, rule, Applying 1177. at 85 S.Ct. this polls at the is voters to show identification the determined that the state’s cer- Court Rather, argues a tax. Gonzalez poll itself requirement tificate of residence was a that, possess some voters do not because among things, material burden: other the required Proposi- under the identification un- procedure filing for the certificate was required tion those voters will be clear, requirement that the certificate money requisite to obtain the docu- spend be filed six months before the election mentation, that indi- payment is one of the “perpetuat[ed] disenfranchising right to a tax on the rectly equivalent tax poll characteristics of the which the vote. Twenty-fourth designed Amendment was Al analysis is incorrect. This eliminate,” and the state al- had other obtaining required identification though ternatives to that establish voters were cost, may have a under Arizona’s statute residents, including “registration, use of (it tax not a fee poll is neither a itself is sanctionfs], purging criminal of registra- imposed prerequisite on voters as a for lists, challenges and oaths.” Id. [and] voting), imposed nor is it a burden on 541-43, at 1177. Accordingly, 85 S.Ct. pay poll refuse to a tax. voters who Cf. that are “[w]e Court concluded thus con- Harman, 541-42, at 85 S.Ct. requirement to hold that the im- strained 1177. posed upon pay the voter who refuses to Our conclusion is consistent with Har- poll abridgment tax constitutes an man, only Supreme case consid- Court right his to vote reason of failure to ering Twenty-fourth Amendment’s ban at pay poll tax.” Id. 85 S.Ct. case, poll on taxes. the Court 1177. required a considered state statute requirement polling place Arizona’s a pay poll voters to either tax on $1.50 Proposition require- analogous. 200’s “a go through plainly annual basis or cum- identify at the ment voters themselves procedure,” bersome id. at 85 S.Ct. tax, a polling place poll is not as stated filing an annual certificate of I. Gonzalez 485 F.3d at 1049. Voters have 530-32, 1177. residence. Id. verify eligibility by showing their dispute There was no fee $1.50 at the which polls,23 identification does not poll Twenty- a tax was barred tax, point constitute a which Gonzalez Fourth Amendment. See id. at dispute. does not Nor does Accordingly, only question requirement place identification 200’s before the Court was whether the state “solely material burden on voters because constitutionally confront the “may federal of their refusal to waive the constitutional that he either requirement voter with Harman, customary immunity” poll to a tax. pay poll required taxes as for state elections or file a certificate of 85 S.Ct. 1177. Voters are not U.S. identity by signature early com- 23. Voters who use an ballot to vote do elector is verified alone). not even have to show identification. Ariz. parison ballots, 16-550(A)(for early Rev.Stat. given paying process,” tax poll poll choice between id. Because the tax state’s identification; all obtaining or voters are made affluence of the voter an electoral required present standard, to identification at the and such a standard is irrelevant I, place. at polling See Gonzalez permissible to voter qualifications, Harman, 541-42, 1049. 380 U.S. 85 Court concluded that tax was invidi- Cf. system 1177. Because S.Ct. “Arizona’s ously discriminatory per and a se violation not, law, qualify a matter of a does as Equal Protection Clause. Id. at tax,” poll the district court in was correct 666-67, 86 S.Ct. 1079. concluding Proposition require- that 200’s polling place Arizona’s identification re- polling place ment of identification at the quirement Harper’s falls outside of rule Twenty-fourth did not violate the Amend- that “restrictions on right to vote are I,

ment. See Gonzalez 485 F.3d at 1049. they invidious if are unrelated to voter qualifications.” Cnty. v. Marion Crawford B Bd., 181, 1610, Election 553 U.S. 128 S.Ct. require Nor is 200’s 1616, (2008) 170 L.Ed.2d 574 (plurality ment voters show identification at the opinion). requirement that individu- polling place a poll tax under the Four als show documents proving identity their teenth Equal Amendment’s Protection is not an invidious classification based on Harper Clause.24 is the leading Supreme impermissible standards of wealth or afflu- considering Court case whether a state law ence, even if some pay individuals have to tax poll Equal is under the Protection for contrary, them. On the requiring indi- In Harper, Supreme Clause. Court squarely viduals show identification falls that a levying held state law an annual within power the state’s to fix core voter poll tax on individuals exercising $1.50 qualifications. Photo identification ad- right their to vote in the state was uncon dresses the most basic voter criterion: stitutional Equal under Protection seeking individuals to cast a ballot are Clause. Id. 665-66 & n. 86 S.Ct. they purport who to be and are in fact 1079. The Court held that “the interest of eligible to vote. Even ITCA admits that State, when it to voting, comes is this is a valid state interest. power qualifications,” limited to the to fix argues ITCA that the more id. at Court’s re- and that Crawford, cent imposition poll taxes fell decision outside this “[w]ealth, 1610,25 power race, creed, Harper’s because like extended hold- color, germane or is not ability ing prohibition to one’s to include a on indirect participate intelligently fees, in the electoral such as fees or necessary costs briefing Therefore, collapses Twenty- ITCA’s 86 S.Ct. 1079. we have ad- 24. separately. fourth dressed these Amendment and claims Fourteenth Amend- poll single argument. ment tax claims into Supreme was decided Crawford But these are different claims that arise under holding Court after this court's I. Gonzalez different constitutional amendments. The "intervening ITCAframes as an con- Crawford Twenty-fourth Amendment extends trolling authority” provides a basis for elections, Harman, federal see 380 U.S. at this court to reconsider its decision in Gonza- (holding Twenty- 85 S.Ct. 1177 that "the registration requirement I that Arizona’s lez poll fourth Amendment abolish[ed] the tax as poll not a tax. Because I did not Gonzalez requirement voting in federal elec- polling place address whether the identifica- tions”), while the Fourteenth Amendment tax, requirement poll constituted a see right also invalidates restrictions on the 1048-49, 485 F.3d at we need not address elections, Harper, vote in state see 383 U.S. at argument.

H97 ever, example which remains as an of an documents. identification required obtain per se electoral standard for which state would Harper’s seeks the benefit ITCA sufficiently weighty never have interests to an electoral standard is that such rule justify requirement paid that a fee be discriminatory, and thus vio- invidiously Because order to vote. Id. Protection Clause. Equal lates the Crawford Harper’s per se rule to did not extend consistent with argument is not This voters, imposed burdens on but left other involved Indiana Crawford Crawford. applicable only poll requirements, tax voting a citizen requirement state support argu- does not ITCA’s Crawford court the office of the circuit person or at Proposition ment that 200’s identification photo day present election clerk before per is invalid under Har- requirement se by govern- card issued identification per. pro- at The state would ment. Id. 1613. “quali- to photo a free identification vide Although ITCA’s reliance on Crawford their residence fied voters able to establish clear, entirely appear not ITCA does not is A identity.” Id. at 1614. number and argue Proposition to 200’s identifica- requirement this on plaintiffs challenged requirement is invalid under Craw- substantially law ground that the “new not, balancing test. ITCA does for ford’s in right to vote violation burdens example, imposed by claim that the burden Amendment.” Id. Fourteenth photo requirement identification was heavy light in impermissibly Arizona’s agree unable to Although the Court was argument interests. legitimate Such upholding rationale for Indiana’s on the unavailing any event. The would be neither requirement,26 photo identification opinion lead held that nor the concurrence held opinion the lead Crawford imposed burden on citizens who must ob- applied rule to Harper’s per se photo tain a identification document was photo requirement. identification Indiana’s heavy a facial sufficiently support to opinion, upon lead id. at 1624. The See constitutionality attack on the of the state relies, that Har- explained which ITCA law, light legitimate of the state’s inter- made “even rational per’s “litmus test” fraud, deterring detecting and voter ests ... invidi- right on the to vote restrictions modernizing procedures, election safe- qualifica- they if are unrelated to voter ous guarding voter confidence. Id. according But to the tions.” Id. 1616. reasoning applicable The same election cases had opinion, lead later opinion the lead noted that here. While away Harper apply a bal- moved provided cards were photo on identification state-imposed test burdens ancing Indiana, by opinion the lead also rec- Id. Under these later free voting process. photo cases, identify ognized that to obtain Indiana’s free a court “must and evaluate cards, by identification individuals were re- put interests forward the State as quired “present ‘primary’ at least one justifications imposed for the burden its document, certificate, can rule, which be birth judgment’ and then make the ‘hard naturalization, U.S. veterans adversary system demands.” Id. certificate our identification, military photo U.S. proceeded apply photo then opinion The lead identification, Id. at passport.” or U.S. balancing photo test to the Indiana Obtaining primary n. 17. these docu- requirement. identification Id. Crawford ments, acknowledged, Supreme Court purport Harper, to overrule how- did not curring opinion joined by opinion Justices Thomas authored Justice Ste- 26. The lead joined by justices vens was Chief Justice Roberts other three dissented. and Alito. The Kennedy. filed a con- Justice Scalia Justice payment require healthy of a fee. Id. Be- balance of power between the cause 200 identification re- States and the Federal Government will quirements include these same reduce the tyranny sorts risk of and abuse from documents, primary Proposition 200’s re- either front.” (quoting Gregory, Id. 2395). quirements are no more burdensome than U.S. at Despite our upheld by respect those ITCA does not for the state’s exercise of its sover- Crawford. argue however, in imposing eign authority, Arizona’s interests the Constitution’s photo requirement requires identification are text specific us to enforce the than weighty less Indiana’s interests in powers enumerated that are bestowed on fraud, deterring detecting voter mod- government federal and denied to the ernizing election procedures, authority and safe- states. The granted Congress guarding Therefore, voter confidence. under the Elections Clause “make or even under the balancing test set forth in alter” regulating procedures state law opinion, up- lead we would federal elections is one power. such Crawford Proposition polling place hold 200’s identi- Framers of the Constitution were clear fication requirement against a facial chal- authority the states’ regulate to ex- lenge. tends so far as Congress declines to Const, intervene. 1; § U.S. art. cl. sum, any payment because associated Foster, e.g., 522 U.S. at 118 S.Ct. 464. obtaining with required the documents un- paramount Given the authority delegated der Proposition photo 200’s identification Congress by Clause, to the Elections we provision legiti- is related to the state’s NVRA, conclude that imple- which mate interest in assessing eligibility comprehensive mented a system national voters, qualifications photo iden- voters, for registering federal supersedes requirement tification is not an invidious Arizona’s conflicting registration voter re- restriction under Harper, and the burden quirement for federal elections. up-We such, is minimal under As Ari- Crawford. hold Arizona’s polling place identification polling place photo zona’s identification re- requirement respect with to all other quirement not does violate the Fourteenth claims.27 Amendment’s Equal Protection Clause. part in AFFIRMED and REVERSED V part. system Our sovereignty, dual which KOZINSKI, Judge Chief dissenting in gives the state governments and federal * large part: authority operate within sepa- their spheres, rate “is one of the majority Constitution’s As the belatedly acknowledges protections structural liberty.” Printz more than halfway opinion, into its we States, 898, 921, v. United 117 don’t come to this case awith blank slate. (1997). 138 L.Ed.2d 914 prior “Just A panel already has in a pub- held separation as the and independence of the opinion lished that Proposition 200 isn’t coordinate branches of the Federal Gov- preempted because the National Voter prevent (“NVRA”) ernment serve to the accumulation Registration Act “plainly al- power branch, states, excessive one extent, at least to low[s] some party 27. Each will bear its own ap- costs on sons articulated the district court in its peal. decision, thorough ruling I would affirm its * portion judgment protection I concur in the favor up- equal of the of Arizona on the holding Proposition polling place provi- Voting Rights challenges 200's Act sion, Ariz.Rev.Stat. 16-579. For the requirement. rea- 200’s voter proposition be over- opinion for evidence present citizens require their turned, the circuit doctrine ... the law of to vote.” registering citizenship when Arizona, revising prior opin- prohibit 1050- 485 F.3d does v. Gonzalez ”). (“Gonzalez Cir.2007) That is (9th Maj. I ion.” binding on therefore circuit and law published opinion to the exception This Gammie, F.3d See, e.g., Miller v. us. our recent en irreconcilable with rule is Cir.2003) (en banc). (9th 889, 899-900 Washing- States opinion banc United weren’t, law of the case it’s Even if it (en banc) (9th Cir.2010) ton, for that rea- disregarded lightly can’t be IV”). case, In that (“Washington See, Mackey, 932 F.2d e.g., Merritt son. with a was confronted three-judge panel Cir.1991). majority The 1317, 1322 in the prior opinion conflict between of this consequences accept refuses in a panel’s opinion another same case and First, law of the circuit it evades reality. pow- it lacked the different case. Because squarely that is exception creating conflict, three-judge er to resolve en banc by a recent unanimous foreclosed the case en banc sua had to call panel our majority then weakens opinion. banc, Sitting en we held: sponte. by declar- of the case law governing rules initially argued to a appeal was This interpretation I’s ing Gonzalez in our but the conflict three-judge panel, when it’s “clearly erroneous” NVRA the matter en led us to rehear precedent I believe that we Because clearly not. three-judge de awaiting without banc seriously and that precedent take must v. Pack Atonio Wards Cove cision. See decided, I correctly dissent I was Gonzalez (9th 1477, Co., F.2d 1478-79 ing the majority’s conclusion from banc). Cir.1987) (en nec step This was registra- Arizona’s voter preempts NVRA because, if panel even could essary requirement. III under Washington have revisited case, exceptions to law of one of I. Wood, 114 F.3d v. see Jeffries circuit law is rule of The fundamental Cir.1997) (9th (en banc), it would still in a legal a issue panel decides that once published opin by that have been bound ruling binds subse- opinion, published see, circuit, e.g., Old ion as the law of in- three-judge panels. The quent Brown, 1036, 1039 312 F.3d Person v. may three-judge panel de- stance when (“[W]e Cir.2002) (9th have no discretion if opinion is published part prior from aspects depart precedential higher au- “intervening” there has been I, under in Old Person prior our decision with “clearly irreconcilable thority that is rule.”). law-of-the-cireuit general Miller, 335 authority.” prior circuit our IV, F.3d at 798 n. 9. Washington truly not this instance is at 900. And F.3d it’s the rule to this Washington to the rule because IV exception Applying authority, not intervening higher our three- simple. “[EJven case is if” the earli- panel, that overrules three-judge to revisit the permitted were judge panel excep- in fact no There are opinion. er “under one of the opinion prior panel’s circuit, or at least there law of the tions to case,” we are “still exceptions to law of today. until weren’t opinion as the published ... bound ” have “no discretion the circuit law that, although pub- majority holds The added). (emphasis Id. depart from [it].” it binding generally, opinion is lished clearly holds that Washington IV—which in the same case. panels later doesn’t bind case— trumps law of the “[wjhere of the circuit law subsequent no panels, those For theory. majority’s forecloses prior published relied on the has opinion majority Washington The brushes aside at 1493 n. 12. majority somehow TV, cases, manages squeeze relying turnip. instead on three earlier blood from a Wood, foremost 114 F.3d 1484 Jeffries Second, to the extent Washington IV (9th Cir.1997) (en banc) V”). (“Jeffries V, says something different from Jeffries problems majori- There are two with is the most recent en banc opinion and V, ty’s reliance on both of which clearly therefore controls. See United Jeffries First, fatal majority’s are to the new rule. Heredia, States v. 483 F.3d 918-19 case, (9th V was about law of the not Cir.2007) (en banc) (recognizing that a Jeffries law of the circuit. V held that the later en banc court overrule an earlier Jeffries three-judge panel opinion). TV erred en banc The majority objects Jeffries III, failing Washington to follow based this IV couldn’t have over- Jeffries “longstanding ruled the conclusion on law of the case. 114 doctrine” that a F.3d at three-judge panel may prior overturn a majority 1492-93. The makes much of the panel’s published opinion excep- under an fact that the dissent in V would Jeffries case, Maj. tion to the law of the have resolved the case on law of the circuit but the doctrine in fact never existed until grounds. Maj. at pecu- 1189-90. But it is today. support It has no V or liar impute indeed to a holding to the Jeffries any other published opinion in our circuit. majority addressed, on an issue it never because it contrary chose not to follow the Take the other two cases the majority reasoning Maj. of the dissent. A cites. (citing dissent has no See Mendenhall NTSB, 469(9th value, Cir.2000) precedential 213 F.3d United States v. Ame- (“Mendenhall II”); line, (9th 409 F.3d n. Tahoe-Sierra Pres. Cir. Council, 2005) (en Inc. Reg’l v. Tahoe banc), Planning majority surely and the Agency, 786-87 Cir. obligated every argument address 2000) (“Tahoe IV”)). The majority claims made there. It is obviously dangerous to support these cases its new rule because infer that the majority ruled on a matter both reversed prior published “a appellate as to which it expressed opinion. never an opinion clearly as erroneous under the ex By that peculiar reasoning, a majority can ceptions to the law of the case” doctrine. be held to have decided an issue—and Maj. at 1188. But neither case contradict made it law of the circuit—when it never prior ed the panel’s legal ruling and there a subject. said word on the fore never disturbed the law of the circuit. The majority very V had little to Johnson, See United States v. 256 Jeffries F.3d say circuit, about of law the (9th and what it 895, Cir.2001) (en banc) 916 (Kozinski, say totally did majority undermines the (a J., concurring) legal statement isn’t law here: “The dissent acknowledge seems to of the circuit unless “it is clear that a that [the] law of the circuit doctrine would majority of the panel has on focused the preclude the panel IV from contra- legal presented issue by the case before it Jeffries dicting the opinion, III thus reach- and made a deliberate decision to resolve Jeffries ing issue”).1 the same majority.” result as the Id. majority ignores

1. While the Maj. Johnson when at 1190-91. But the statement in Wash- exaggerating precedential ington necessary effect of two explain why TV was circuit, cases that didn’t alter the law of the three-judge panel it sponte had to make a sua relies on the Johnson concurrence in an at- en banc call. 593 any F.3d 798 n. 9. In event, tempt Washington to characterize TV'srule as opinions, statements in en banc as in the sort of Supreme ’'casual[]” statement opinions, "uttered in Court must be taken far passing” binding panels. that isn’t on seriously later three-judge more than statements in the claims were therefore held that panel panel reversed Mendenhall The later IV, Tahoe 216 F.3d 788- fees, time-barred. attorney’s Men- market-rate award of Mendenhall, panel’s the later Like II, & n. but F.3d at 469 denhall prior panel didn’t reversal of putative panel’s statement prior overturn didn’t circuit statement of law.2 binding alter a fees at a attorneys’ request [for] that “a rate____is appropriate market reasonable and Tahoe the are Mendenhall Nor faith,” of bad showing there is where panel opin- A point. on number cases NTSB, F.3d v. Mendenhall applies of the circuit ions hold law Cir.1996). Rather, (9th it that the realized in case. Old Person panels later the same mistakenly applied a stat- panel had prior (9th Brown, 1036, 1039 Cir. 312 F.3d litigants attorney’s fees awarding ute 2002), quotes, is Washington which IV who had in court to someone prevailed who panel Person ex- example. The Old good proceeding. in an administrative prevailed by prior opin- that it was bound plained II, at 469. Because 213 F.3d Mendenhall exceptions” of the three ion because “none statute, the correct applied panel the later applied, the case but was to law of prior to disturb no occasion it had it also had “no point out that careful to other statute. construction panel’s precedential from as- depart discretion I, our decision Old Person Tahoe, pects prior panel earlier both the of the circuit rule.” that, general under the law gener- the rule panel applied later Id.; Irrigation Minidoka Dist. see also affirmatively plead al, must defendants (9th Interior, 406 F.3d Dep’t filing limitations in a with the statute of Cir.2005) (“[W]e opinion are ‘bound Levald, City Inc. v. Palm court. See (9th the law of the case. prior panel Desert, Cir. F.2d 686-87 depart have no discretion 1993). that the Also we panel had held prior aspects prior of our decision precedential time-barred be- claims weren’t plaintiffs’ ], general law-of- I under affirmatively” cause, “[flailing plead [Minidoka ” (second alteration in circuit rule.’ than an the limitations other any statute of Mar- accord Hilao v. Estate one, original)); couldn’t defendants irrelevant (9th Cir.1996) (“This cos, 767, 772 103 F.3d Tahoe-Sierra “rely on other.” then rejected arguments these Council, court has twice Reg’l Tahoe Plan- Inc. v. Pres. published I II. The in Estate and Estate Cir. ning Agency, ”). are both the con- 1994) (“Tahoe remand, decisions cases the de- those III On law of of the circuit and the trolling law pled answer that filed an fendants omitted)). (citations limitations, later this case.” and the statute of correct 1477, (9th Co., Packing F.2d 1478-79 strictly 810 they if are not panel opinions, even 1987) (en banc). v. Cir. necessary the See United States result. Cir.1996) ("[W]e Baird, 450, (9th 453 85 F.3d due deference Tahoe Ill’s Supreme Court dicta with 2. Tahoe TVsaid that overturned treat because, ...."). Washington holding defendants legal like TV’s ... that the “bare That's rule, de- opinion statute of limitations an en banc that’s forfeited the correct a statement TV, at 788. If that Tahoe 216 F.3d necessary merits of the case fense.” to resolve the not holding, truly then the subse- were Tahoe Ill's "provides supervisory function” often law of the quent panel would have overturned "three-judge panels and district courts---- only III it wasn't. Tahoe said circuit. But authoritative circuit constitutes thus [and] Enomoto, 744, rely on a statute the defendants couldn't F.3d that Barapind v. 400 law.” see, (en banc); they pled. the (9th Cir.2005) hadn't Because e.g., of limitations 751 n. 8 answer, 900; Tahoe Miller, hadn’t filed their defendants United States v. Har- F.3d at 335 they 1347, Cir.1992) (en (9th considered whether III couldn’t have desty, 1348 977 F.2d limitations defense. curiam); their statute of banc) Cove waived Atonio v. Wards (per 1202 IV, Washington opinions normally prior

Like ex- unless the grant these decisions Atonio, distinguished.” can be 810 F.2d by that bound plain three-judge panels are added).3 1479 (emphasis panel prior opinions as law of the circuit Ultimately, this is all academic. There’s they’re if by even not bound those deci- just getting no around IV’s Washington They as law of the case. also recon- sions “even if’ holding permitted that we were II with our cile Mendenhall and Tahoe TV prior panel’s opinion to revisit “under rule, law of the circuit of those neither case,” exceptions one of the to law of the departed “precedential aspects” from cases we ... published are “still bound opinion law of have as the the circuit” and prior panel But even if opinions. of the to depart “no discretion from 593 [it].” Mendenhall and for what the Tahoe stood n. 9. can F.3d 798 We debate the mean- claims, majority our three-judge panel want, ing of all we but a unani- Jeffries power doesn’t have the to elevate them just in Washington mous en banc court IV Person, Old Hilao. If above Minidoka or very majori- against resolved this issue conflict,” with such a call “faced we “must ty’s position. majority here auda- review, banc court ciously for en which the will contradicts this en banc opinion.4 through We’re not alone. accomplished Most of our sister circuits an en banc consider- agree three-judge panels pri- ”), argument.’ must follow ation other overruled on 274, 1414, opinions published or case law grounds the same 152 See, (2002); States, e.g., the circuit. ex rel. Irving of Schiavo Schin- L.Ed.2d v. 437 United Schiavo, (11th (1st Cir.1998) (en banc) v. dler 403 F.3d 1292 F.3d Cir.2005) ("Because ("In previous I), our [Irving decision v. (Irving [909 United States] published, (1st Cir.1990) prior panel precedent panel was rule F.2d 589 court ] of this applies any holdings expressly also reached in the defined the contours of the discre- appeal.”); Kofka, on, Swipies earlier v. tionary exception. F.3d function From then (8th Cir.2005) (”[W]e held in methodology represented of both the law appeal Swipies earlier in this Mr. case that regarding the case and the law of this circuit possessed such an We are bound interest. application discretionary the due func- holding. only Indeed, follow this It not the law exception.... when the United case, circuit, i.e., but the law of the discretionary States asserted de- function panel only II), decision of another [Irving which (living fense in United States] (citations (1st Cir.1995)] court en banc overturn.” omit- panel [49 F.3d 830 ... ted)); Af-Cap Republic Congo, Inc. refuge took in the law the circuit doctrine ("The Cir.2004) (citation argument....” F.3d 367 n. 6 dispense subse- omit- panel ted)); quent forego would Edgar, have Pearson v. 153 F.3d doctrine, (7th Cir.1998) ("Absent application of the law of the case intervening Su- decisions, would have preme but also to discard the well-estab- Court Curtis and South-Sub- panels lished rule that circuit ‘bound binding precedent are be urban would issue, on precedent previous panels absent an and Curtis would also be the law of intervening explicitly implicitly case.”). ... case or lopsided Such verdict our ” (alteration overruling prior precedent.' peers provides yet question another reason to Alow, original)); United States v. departing wisdom from our circuit’s (D.C.Cir.2003) ("[Tjhose published opinion issues well-settled rule. by barred are law of the case doctrine.... addition, appli- majority the law of suggests the circuit doctrine 4. To the extent the a three- prevents appellate panel judge here a panel published opinions cable new can overrule erroneous,” declining legal rulings they're "clearly to follow the because also it panel prior Contreras, appeal.”); the in a v. United conflicts with United v. 593 States Craft States, (6th Cir.2000) ("Our (9th Cir.2010) (en banc). 233 F.3d 369 F.3d 1135 Contrer- portion panel decisions in I and in also law the opinion Cole are as reversed of a Craft stated, recently panel circuit. purported clearly the As we ‘One that had to overrule several may published court opinions of this not overturn the decision of the erroneous because panel may only panel authority though another of this court—that be lacked to do so—even

1203 tered); see Christianson v. Colt Indus. II. 800, 817, Operating Corp., 486 U.S. 108 right law majority the were that Even if (1988) (“[T]he 2166, 100 L.Ed.2d S.Ct. 811 I apply, Gonzalez of the circuit doesn’t law of case turns on whether a the court as law of the case. undisputedly binds us previously upon a rule of ‘decide[d] law’ wriggle tries to out majority in vain The whether, well, ... or not on how ex- that Gonzalez I’s conclusion from under (second plained the decision.” alteration in preempt Proposition doesn’t the NVRA original)). invoking “clearly erroneous” the atMaj. to the of the case. exception law We merits ... might “scrutinize the the is clearly But erroneous bar 1187-89. greater if I any with care” Gonzalez lacked plausible a to If “it is to tall one hurdle: “analysis the reflecting argu- authorities or preempt doesn’t find that” NVRA ment which led the rule [it] to [it holding in [Gonzalez “the Houser, United reached].” States clearly cannot be deemed erroneous.” I] (9th Cir.1986). F.2d But the law States, Co. v. 55 F.3d Leslie Salt United doctrine allow us case doesn’t to Cir.1995). 1394(9th is incum- “[I]t poor reasoning begets assume that clear upon [plaintiffs] to convince us not bent Indeed, panel’s error. we’ve held that majority that the decision [Gonza- “expressly failure claim [a] to address clearly it was wrong, that lez I was but ] opinion” corresponding its failure to —and Merritt, 1322; at wrong.” 932 F.2d see offer reasons its resolution V, 114 F.3d 1489. also Jeffries clearly claim—isn’t erroneous. Leslie heavy majority carry fails burden Salt, at 1393. materially weakens the standard for panel’s faulty A reasoning doesn’t neces pretending all future cases it does. sarily its consign conclusion to trash A. heap; conclusions can be arrived most through multiple of reasoning. chains According majority, Gonzalez And, although “panels occasionally will I “conclusion was rooted in a panel’s fun- find it alternative appropriate offer ra misreading of the statute.” damental (em Johnson, tionales,” 256 F.3d at 914 added). Maj. (emphasis at 1187 “Reason- added), they’re phasis required do misreading from a ing fundamental Thus, perceived so. the existence of holes statute, prior panel reached conclu- a prior panel’s rationale doesn’t stated Id. sion that was clear error.” at 1188 added). preclude possibility panel that the had (emphasis But we don’t examine reasons it to the same leading unstated prior panels’ reasoning. We must follow certainly It mean conclusion. doesn’t I unless the “decision ... is so Gonzalez incorrect, justified panel result the reached is clearly incorrect that we are as it have reached the correct result refusing regard it as law of the case.” Merritt, say (emphasis wrong 932 F.2d at al- for the reason.5 we When adopted panel's principle also our review the en banc court then This informs 1136; judgments. district court “In the review of analysis. legal Id. at State Oil Co. cf. that, judicial proceedings settled rule is if Khan, 3, 20, U.S. correct, it must be decision below af (1997) (court appeals L.Ed.2d 199 was firmed, although upon relied lower court Su- correct not overrule "infirm[]” wrong ground gave wrong or reason.” rightly predicted preme Court decision that it Corp. Consejo Thos. Nacional de P. Gonzalez Court). Supreme by the would be overturned Rica, de F.2d Produccion Costa Cir.1980). panel’s holding clearly wrong, phrases what where ‘and’ express would talking we’re is the thought about rule of law it greater clarity.” with Sylva De announces, Ballentine, 570, 573, the method which it 351 U.S. 76 S.Ct. adopts (1956). that rule.6 Indeed, 100 L.Ed. 1415 it is well recognized that “or” can have multiple This distinction doesn’t matter here be- meanings, with the “exclusive or” —mean- clearly cause Gonzalez I wasn’t erroneous ing one or the other but not being reasoning either or result. both — Let’s start largely symbolic useful in logic rather than with Gonzalez I’s statement that “[t]he parlance. common Wikipedia, Exclusive ‘accept NVRA mandates states either or, http://en.wikipedia.org/wiki/Exclusive_ and use mail voter form (last 21, 2010).7 Aug. or visited prescribed by Assistance [Election Commission,]’ or, alternative, in the ‘devel- Legislatures' presumably choose —-which form,’ op and use long [their own] as as statutory language with care —have used the latter conforms to the federal guide- “or” conjunctively disjunc instead of as a I, (third lines.” tive, See, Gonzalez 485 F.3d at 1050 exclusive e.g., “or.” Chemehuevi (citations omitted). alteration in original) Comm’n, Tribe Indians v. Fed. Power The majority takes issue with passage 395, 417-18, 420 U.S. 95 S.Ct. because the requires (1975) NVRA ac- states to L.Ed.2d 279 (“utilizing surplus cept and use both the federal and state water or power”); water Swearingen v. forms; ergo, Gonzalez I States, misconstrued the 446, 450, United Maj. statute. (1896) 1187. But “the word ‘or’ (“obscene, 40 L.Ed. 765 lewd is often used as a lascivious”); careless for substitute or see also Wisotsky, Steven ‘and’; is, the word it is often used How Interpret To Statutes —Or Not: Focusing panel's 6. reasoning on a defeats the Certainly true. many under circumstances purpose fundamental of law of the case doc a sentence example like this should be tak- protecting parties the court and the forbidding en possibility of one’s trine — from the repeated argument by burden of so, accepting options. both Even there is pertinacious litigants by encouraging the good suppose reason to that this sort of — parties relitigate their case. See 18B disjunctive sentence is not at all. If all we Wright, Charles Alan Arthur R. & Ed Miller disjunction know about some is that it is Cooper, ward H. Federal Practice overall, and Proce true we cannot be sure that either (2d ed.2002). dure 4478 at 667 Such reliti disjuncts of its example, is true. For if a gation decisionmaking glacial can slow to a woman has been told that her friend is pace, happened which is what to administra either at the snack bar or on the tennis agencies tive judges began when to allow court, validly she cannot infer that ishe on litigants challenge agencies the reasons the the tennis court. But if her waiter tells her gave regulations they proposed. the new may that she may have coffee or she have See, e.g., McGarity, Thomas O. Thoughts Some tea, validly she can may infer that she have Process, “Deossifying” Rulemaking on Nothing tea. classically thought of as a 1385, 1385-86, (1992); Duke L.J. 1400-03 M. disjunction property. has this This is so Magill, Agency Elizabeth Policymak Choice given might reasonably even that she take Form, ing 71 U. Chi. L.Rev. & 1390-91 having her waiter as possi- denied her the (2004). n.17 bility having both coffee and tea. Wikipedia gives following example good general There are also reasons to illustrate the difference between the exclusive suppose that no word in natural lan- and the inclusive "or": guage adequately represented could be might argued [I]t be that the inten- binary normal logic. exclusive "or” of formal or, tion of a statement like Wikipedia, "You have Exclusive http://en.wikipedia. coffee, you may or stipulate (last have tea" org/wiki/Exclusive_or is to Aug. visited exactly one conditions can be 2010).

1205 Phantoms, ‘require[ “permits 10 and states such ] Meaning and Other Plain necessary ... as is identifying 326-27 information & Process J.App. Prac. obviously (2009). that seem ... to assess phrases officials] And to enable election ” “or, the are alternative” disjunctive eligibility applicant.’ like of the the H.W. conjunctively. (alterations See used original). The ma- sometimes at 1050 Fowler, English Dictionary A Modem I jority argues that Gonzalez “misread” ed.1965). Thus, (2d the Gon- Usage “portions because the of the the statute have meant that panel I could zalez that to the Form NVRA relate Federal exclusively federal on the rely state solely at the ... are directed [Election alternative, or, develop also in the form Commission], not the states.” Assistance perfectly accurate This is state form.8 Maj. at 1187. But these instructions to the NVRA. description of to the states apply the Commission do al- through 1973gg-4(a)(2), section which I that Gonzalez majority protests The “develop be states to and use” their own conjunctively “or” have used couldn’t lows be interpretation would form if it “meets all of the criteria stated cause “such an Maj. contrary panel’s logic.” I prior 1973gg-7(b).” to the in section Gonzalez reads the only contrary to correctly; majority at 1188. But it’s it the statute is the prior interpretation majority’s here that is mistaken. majority begins the its logic

panel’s —and B. I by assuming Gonzalez interpretation known as This is majority’s misread the statute. if reasoning Even the is begin If with question. we begging wrong, its conclusion that I Gonzalez three- presumption that unanimous be if the clearly erred could still correct statutes, judge panels don’t misread preempt law. must be read state NVRA conjunctive easily “or” can be construed enough majority But for the to find it’s that ly, to the conclusion Gonza support it a construction the statute likes better. correctly. interpreted I NVRA lez all, many can plausibly After statutes be Brown, F.3d United States ways, construed two different neither Cf. Cir.2006) (“[I]f (5th we with the begin clearly wrong. can be to be which said guilty, assumption is that[the defendant] U.S.A., See, Chevron, Inc. Natural e.g., support be the documents can read Council, 837, 843, Res. U.S. Def. if with begin But we assumption. (1984) (“[I]f 2778, 81 L.Ed.2d is not proper presumption [he] ambiguous respect with statute is silent or ..., must conclude the evidence guilty we issue, specific question for the to the insufficient....”). agency’s answer is court is whether permissible on a construction of based ma- quotes which the other two added)). clearly (emphasis To be statute.” its even jority points support argument erroneous, panel’s the prior construction I section less. Gonzalez states pass must be so flawed that could not states 1973gg-7(b) “prohibits of the NVRA test, the Chevron had step nota- the second requiring form be [their] authenticated,” adopted by an ad- formally that construction been rized or otherwise J., 1988); (Kozinski, id. at 746 precedent that "and” and Cir. see 8. Our own shows interchangeably. can be used "or” sometimes dissenting). is law of the circuit as MacDonald Pan American example, For in MacDonald v. "or” issue and stands to the "and” versus Inc., majority Airways, construed World way majority’s claim Gon- that the particu- despite "or” "and” in a contract as panel I misread the statute. somehow zalez larly 744-45 eloquent dissent. F.2d 1206 844, agency.

ministrative See id. accept Those who and use the former often (“[A] S.Ct. 2778 court require substitute also the latter. statutory its own construction of a provi- The majority’s “accept contention that for a interpretation sion reasonable made and use” must be preclusively read “[i]n (em- by the administrator of an agency.” NVRA,” the context of the or “under an added)).

phasis Elections framework,” Clause Maj. at case, 1188, is unconvincing the text of the NVRA because its under- “directly standing doesn’t of precise “use” conflicts with that ] word’s address! question issue,” plain English meaning. id. at As the Supreme S.Ct. observed, namely Court has whether states can ask for supplemental proof citizenship. The Webster’s defines “to use” as con- “[t]o says statute accept “[e]aeh State shall vert to one’s service” or employ.” “to and use the mail registration voter applica- Webster’s New International Dictionary prescribed by (2d tion form ed.1950). the [Election As- Black’s Law Dictio- sistance Commission].” nary U.S.C. contains a similar definition: “[t]o § 1973gg-4(a)(l). It requires likewise of; make use to service; convert to one’s “[a]eceptance completed registra- voter employ; of; utilize; to avail oneself application tion forms” at state and local carry out a purpose or action government offices, which must be trans- means of.” Black’s Law Dictionary 1541 mitted “to the appropriate ed.1990). State election Indeed, years over 100 § official.” 42 U.S.C. 1973gg-5(a)(4)(iii). ago gave we the word “use” the same “ The statute obviously doesn’t prohibit sup- gloss, indicating that it means ‘to em- plemental requirements, state and ploy’” both or “‘to derive service from.’” preemptive and non-preemptive construc- Merritt, Astor 202, 213, 111 U.S. tions of “accept” and “use” plausible. are (1884). 28 L.Ed. 401 prior panel’s The easily construction thus States, Smith v. United 228- passes the Chevron test. (1993) 124 L.Ed.2d 138 (alterations in original). To “use” an ob- majority that, believes requiring ject simply is to derive service from or states to “accept and use” the federal form utilize it. The NVRA doesn’t say that registration “for the voters elections states must treat the federal form office,” as a for Federal 1973gg- U.S.C. complete application. It 4(a)(1), might preclude a precludes NVRA states from state from requiring an applicant pro- imposing additional requirements. Maj. at yet again vide 1182,1188. information that al- But “accept” neither nor “use” ready form, on the federal but has such a that’s not preclusive meaning; it’s entire- the case here. There’s question no ly possible accept and use something for Arizona accepts and uses the federal form particular purpose, yet not have it be for the information contained in it. Ari- satisfy sufficient to that purpose. go Just only zona proof asks for any citizenship liquor store that personal takes addition to the form in complete order to They checks: will happily accept and use registration process. your check, but you after provide ID showing you’re authorized to write it. Nor is the “accept and use” requirement A minute’s thought up comes with necessarily endless converted into broad preemp- such examples: passport visa; and car provision by the general NVRA’s registration proof insurance; board- statement that “notwithstanding any other ing pass ID; picture eggs law, and ham. Federal or State addition to satisfy before must applicant ments each provid- of voter method other use” the federal “accept will the state law, shall each State for under State ed Arizona, re- many states like form. Just in to vote register procedures establish proof eligibil- include of quire applicants 42 U.S.C. Federal office.” for elections security Alabama, “[yjour social ity. That Maj. at 1178. see 1973gg-2(a); § Form Registration requested.” number is imple- requires states to merely provision requires a “Connecticut at 3. Connecticut any con- regardless of ment the NVRA none, Number, if the or License Driver’s the authority. It doesn’t alter trary legal Security your digits of Social last four the statute. scope of substantive applicants Hawaii tells at 5. Number.” Id. expressly security number is thing the NVRA “[yjour full social The fraudulent prevent required. “nota- It is used requiring is states prohibits to furnish voting. Failure registration and authentication.” formal or other rization acceptance of prevent will this information The inclusion 1973gg-7(b)(3). § 42 U.S.C. more, at 7. There’s Id. application.” indica- strong is specific prohibition of a majority’s read- get the idea. The you but intend- weren’t prohibitions that other on the voter casts doubt ing of the NVRA Cabaccang, 332 v. States ed. See United in many states procedures of registration (9th Cir.2003); also U.S. see 630 F.3d Arizona. addition to Thornton, Limits, U.S. 514 Inc. Term nothing in the truth is that simple The L.Ed.2d n.9, 131 115 S.Ct. 793 sup- Arizona’s clearly supersedes NVRA (1995). 881 requirements. To registration plemental Moreover, expressly author- the NVRA a broad majority invents get way, its the in- identifying require “such izes states to same-subject-matter preemption, rule of necessary to enable the ... isas formation pre- “addresses the NVRA arguing to assess election official State appropriate 200 in topic Proposition cisely the same applicant.” 42 U.S.C. eligibility information namely, the specificity, greater plau- can provision This 1973gg-7(b)(l). that an required to that will be ensure authorizing type of sibly be read as in federal elec- eligible to vote applicant is re- that Arizona “identifying tions,” regu- information” “comprehensive that its such pas- procedure majority registration holds that this the voter quires. lation” of 200’s addi- “clearly subsumes comprehensive of framework sage part is Maj. documentary requirement.” of tional requiring proof states from preventing But, acknowledges majority as the possibility citizenship, overlooks but under question opinion, in its earlier “necessary to en- may be proof that such the two isn’t whether the Elections Clause See eligibility. assess Arizona to able” wheth- topic,” but “the same laws address Maj. at 1181. rather “complements” law er Arizona’s supplemental require also states Other pro- congressional with “the than conflicts Vot- current National information and (citing Ex Maj. at 1176 scheme.” cedural available on Form Registration er 371, 384, Siebold, 25 L.Ed. parte website, Commission Election Assistance Love, (1879)); also see Foster Form”) (“Registration http://www.eac.gov, 67, 74, L.Ed.2d 118 S.Ct. U.S. cur- them. The seamlessly accommodates (1997) (state’s preempted election law Num- a box labeled “ID fed- [thej form it with rent includes conflicts [that] “to extent law”). item 6 based on applicants to no conflict “[s]ee that directs There’s ber” eral gladly Arizona Item the statutes. your state.” text in the instructions form, just it uses the federal accepts and turn, state-by-state require- catalogs 833, 842, some provide proof asks that voters also of U.S. 92 L.Ed.2d (1986) J.) (O’Connor, citizenship. (“Congress em powered promul the CFTC ‘to make and compre- Had meant Congress to enact gate regulations such rules and as ... are of voter registration, hensive code could reasonably necessary to any NVRA, have but it said so didn’t. effectuate provisions or to accomplish Congress have had the more modest (alteration purposes [the CEA].’” goal balancing ease of original)). And Section of the NVRA against protecting each state’s interest doesn’t even voting system. Congress explicit- prescribe authority; its Had lines of ly prohibited imposing states from it addi- orders the Commission to consult with tional requirements, plausi- then we could the states when the developing federal bly I clearly conclude Gonzalez § 1973gg-7(a). form. See If anything, id. didn’t, wrong. But it therefore and the Congress indicates that want to didn’t majority authority has no under the law of aggrandize power the Commission’s over the to “depart case doctrine [the] certainly the It states. doesn’t “demon V, prior 114 decision.” F.3d at legislative strate a intent to limit States to Jeffries 1493. a purely advisory role.” Cal. Coastal Co., 572, Comm’n v. Granite Rock 480 U.S. C. 584, 1419, (1987) 107 94 S.Ct. L.Ed.2d 577 majority The offers several of its own J.); (O’Connor, see v. Cmty. also Block why preempts reasons for the NVRA Ari- Inst., 340, 347, Nutrition 467 U.S. 104 “If zona’s law. this court considering were (1984) (O’Con 2450, S.Ct. 81 L.Ed.2d 270 time, the issue for the first argu- [these] J.). nor, might ments well deserve closer consider- majority Nor right rely is the on the Salt, ation.” 55 at Leslie F.3d 1395. But letter from the Election Assistance Com- “at this point proceedings, the [we] mission Arizona telling proof-of- its address the merits of claims [the] so requirement citizenship violates far necessary as to determine whether the Maj. NVRA. give at 1182. We don’t defer- clearly [Gonzalez court wrong.” I] was ence agencies to administrative on the Id. at majority’s 1394. None of the rea- question preemption. Wyeth See v. Le- exacting sons meet this standard. vine, -U.S.-, 1187, 129 1200- S.Ct. majority 1. claims that “allowing 01, (2009) (“In cases, 173 51 L.Ed.2d such impose states requirements their own performed Court has its own conflict federal voter ... would determination, relying on the substance of nullify procedure the NVRA’s for soliciting state and federal law on agency and not state input, aggrandize the states’ role proclamations of pre-emption.”). Even if in direct contravention of the lines of au- did, we case, we wouldn’t defer in this thority prescribed by Maj. Section 7.” at clearly because an informal letter lacks Congress 1182. granted But never much “the force of law.” United States v. Mead authority Election Assistance Com- 218, 226-27,121 Corp., 2164, mission. The Commission can’t write (2001). 150 292 L.Ed.2d Determining many regulations, U.S.C. can’t whether preempts the NVRA Arizona’s regulations enforce the NVRA or the proof-of-citizenship requirement begins writes, § 1973gg-9, id. has no investi- and ends with the statute. gative powers. profile That’s not the of an agency charge reason, of a comprehensive regu- For majority’s same Schor, latory scheme. CFTC 478 claims that be able states shouldn’t Cf. requirements. posing any supplemental As- the[Election around make an “end-run pro- consultative doesn’t Maj. Congress at But dis- sistance 1182. Commission's allowing cess,” Maj. at everything guise general proscriptions form supplement federal states to one specific proscriptions narrow proce- make [Commission’s] “would thing. Trucking See v. Am. Whitman exer- empty ... an for consultation dure Ass’n, 457, 468, 121 S.Ct. U.S. cise,” beg question id. (2001) ... (“Congress [doesn’t] L.Ed.2d the Commission can bind whether mouse-holes.”). elephants in Nor hide have Congress may intended states. require permitting proof Arizona to would power supplement fed- grant states it to citizenship free violate NVRA’s objec- despite eral rules the Commission’s requiring ban on formal notarization. Ass’n, Clearing House tion. Cuomo Cf. Refusing Maj. to enforce an un- - -, U.S. hardly written ban weakens the force of (2009) (states enforce can L.Ed.2d express prohibition. fair-lending tried to laws OCC state majority 3. The much time to devotes give If to preempt). Congress intended making case that thrust the the “the of disagree, then Arizona power states this to is voter regis NVRA to increase federal an at all. hasn’t made end-run registration streamlining tration the on fact that majority 2. The relies the 1180; Maj. at id. at process.” see 1176-80. the same precisely the “addresses NVRA pages reviewing spends It endless the his greater in topic specific- laws, 1176-78, tory voting of id. at discuss the that will be ity, namely, information ing congressional hearings general on the is required applicant to ensure that of problem participation, voter id. at Maj. in eligible to vote federal elections.” many reviewing operative parts of But the NVRA’s text never NVRA, Maj. But the ma 1178-80. authority on it’s the exclusive states that jority’s disquisition history on lengthy issue, or that federal form must be highlights the absence of purpose only of to fully registering “a sufficient means for its support textual conclusion that Con Maj. at 1188. vote in federal elections.” gress registration meant to voter increase plausible that perfectly It’s the NVRA supplemental by prohibiting state-imposed minimum set information would have requirements. rely To the we on extent require, prohibited specific one states must all, purpose at we should focus on (formal requirement of authentica- type purposes codified the statute rather tion) process and established a consultative guesses reading than our based on the tea developing for national form. Such See history leaves context. Exxon broad, guidance is far a defin- flexible Servs., Inc., Allapattah Corp. Mobil Moreover, if itive regulatory scheme. 546, 568, 162 L.Ed.2d U.S. deviation from the permits statute zero (2005). form, why develop permit federal states are: develop- purposes The NVRA’s four their own forms at all? ment photocopying (1) needed would be procedures that will in- establish federal form. eligible crease the number of citizens for register who to vote elections that be-

Relatedly, majority claims office; Federal prohibits “nota- requiring cause the NVRA (2) Federal, possible it authentication,” make or other formal rization State, governments imple- and local 1973gg-7(b)(3), § must Congress U.S.C. subchapter im- ment this in manner prohibit have intended states from eligible cit- participation many apple enhances the carts all at once. Count me izens as Federal voters elections for out.

office;

(3) protect integrity the elec-

toral process; and

(4) to ensure accurate and current registration

voter rolls are maintained. added). 1973gg(b) (emphasis U.S.C. Congress thus told us that con- was BAUER, Jennifer E. Plaintiff- maximizing registration cerned with Appellant, voters, “eligible” pro- “to addition tecting] integrity pro- the electoral “ensuring] cess” and that accurate and AMERICAS, INC.; Lady MRAG F/V current voter main- rolls are Karen; Lady Karen, Incorporated,

tained.” None of purposes Id. these Defendants-Appellees. served when individuals who are citi- No. 09-17254. register zens to vote. See John v. United States, 1036-37 Cir. Appeals, United States Court of 2001) (“We must not federal ‘interpret Ninth Circuit. negate pur- statutes to their own stated Submitted 2010.* ”). Oct. poses.’ majority explains The never why a “protect statute enacted to the in- Filed Oct. tegrity of electoral process” and “en- sure” that voter rolls are “accurate” must

preclude states from confirming that those are,

who register fact, eligible wish to

vote.

[*] ^{[*] [*]}

The majority major distorts two areas of

law before it even reaches the It merits.

creates an unprecedented to our exception rule,

law of the circuit underfoot trampling

a newly en banc opinion. minted The ma-

jority also makes a mess of the law of the analysis by

case taking prior issue awith

panel’s reasoning, And, not its conclusion. merits,

as to panel comes nowhere

close to proving that interpre- Gonzalez I’s

tation of the National Registration Voter

Act wrong, was much clearly wrong. less

Few panels are able to upset quite so

* panel unanimously 34(a)(2). R.App. concludes this case is See Fed. P. argument. suitable for decision without oral

Case Details

Case Name: Maria Gonzalez v. State of Arizona

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Oct 26, 2010

Citation: 624 F.3d 1162

Docket Number: 08-17094, 08-17115

Court Abbreviation: 9th Cir.