It is about 2,300 miles from Phoenix, the capital of the state of Arizona, to Washington, D.C., the capital of the United States. That’s a long way. But beyond physical distance, the philosophical divide between Phoenix and D.C. may be even bigger.
The Supreme Court is poised to decide the case known as Arizona v. The Inter Tribal Council of Arizona, Inc., which could have implications much broader than the matter of whether extra identification must be presented if a person without a driver’s license is trying to register to vote in Arizona.
The National Voter Registration Act (NVRA), sometimes called the “Motor Voter” law, was passed in Washington, D.C., by the federal government back in 1993.
It established uniform procedures for all states to follow in federal elections. Under the NVRA, someone who is registering to vote has to check a box affirming under penalty of perjury that he or she is a U.S. citizen.
In 2004, the state of Arizona passed Proposition 200, a law known as the “Arizona Taxpayer and Citizen Protection Act,” that requires that anyone trying to register to vote who doesn’t have a driver’s license must provide documents such as a birth certificate or a passport to prove citizenship.
So the question arises: Can a state add requirements to the federal rules for voter registration that go beyond what the federal government requires?
The state of Arizona says yes; the federal government says no.
The case will determine to what extent each state has the right to set voter registration requirements, and even more broadly, will get into questions of what rights states have to make laws on subjects covered by federal law.
The United States Constitution lays out the powers of the federal government to make laws.
Article VI, Section 2 of the Constitution contains the Supremacy Clause, which states:
“This Constitution, and the laws of the United States which shall be made in pursuance thereof. . . under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.”
In other words, a state cannot pass a law that is inconsistent with a federal law. This is a legal doctrine called “preemption.” Where a conflict between a law passed by the federal government and a law passed by the state government conflict, the federal law will stand; the state law will be preempted.
So is the Arizona proof of citizenship law inconsistent with the federal NVRA?
The answer depends on whom you ask.
In his brief to the Supreme Court, Thomas Horne, the attorney general of Arizona, wrote: “The requirement that the applicants provide additional evidence to support their application does not constitute a ‘rejection’ of the Federal Form any more than an identification check at an airport gate entrance constitutes a ‘rejection’ of a passenger’s ticket.
But the federal government disagrees, and it has argued that the point of the NVRA is to have a single, streamlined system whereby all voters in federal elections abide by the same process across the country.
Allowing states to tack on additional requirements not only removes the essence of the federal law, it also has the effect of preventing otherwise qualified citizens from becoming registered to vote.
What do you think? Do the laws conflict? Does Arizona have the right to add requirements for voters to register? We’d love to know your vote on this matter.
Amy E. Feldman is the legal education consultant to the National Constitution Center. She is the general counsel of The Judge Group, Inc., a leading global professional services based in Philadelphia.
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