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Separate Federal and State Voting Rules Threaten to Disenfranchise Voters

In June, the U.S. Supreme Court ruled that Arizona could not require individuals to present proof of citizenship, such as a birth certificate, passport, tribal identification, or naturalization documents, in order to register to vote in federal elections. In response, Arizona joined Kansas last week to set into motion a costly plan to create a separate voter registration system, with separate ballots, for state and local elections.

The creation of two separate voter registration systems could translate into thousands of disenfranchised voters. Ninety percent of the 31,000 voter registration applications that were denied after Arizona adopted Proposition 200, the initiative requiring proof of citizenship, belonged to U.S. citizens. Nationwide, as many as 13 million Americans do not have ready access to proof of their citizenship. Many racial minorities, students, elderly, and poor individuals do not have the types of government-issued identification documents being required by Arizona. In addition, as many as 34 percent of American women, who often change their names after marriage or divorce, do not have a government issued ID that reflects their current name. These documents can be costly and difficult to obtain.

Arizona Proposition 200 passed in 2004, requiring all individuals to provide proof of citizenship when they registered to vote in the state. The U.S. Supreme Court ruled, however, that with respect to federal elections, the National Voter Registration Act (NVRA), which requires states to use a uniform federal voter registration form, controls, not the Arizona law. NVRA does not require documentary proof of citizenship to register to vote. The federal Election Assistance Commission (EAC) creates federal voter registration forms. States can ask the EAC to approve state-specific instructions on the form, like proof of citizenship. Arizona had requested that the EAC approve its proof-of-citizenship requirement in 2005, but the EAC took no action on the request and Arizona did not challenge the EAC in federal court. In making its ruling, the Supreme Court indicated that Arizona could reapply to the EAC to approve its proof-of-citizenship requirement.

Both Arizona and Kansas are now suing the EAC to be able to amend their voter registration forms to require proof of citizenship for both state and federal elections.

Media Resources: The New York Times 10/11/13; The Wichita Eagle 10/4/13; Arizona Attorney General Press Release 10/7/13; The Brennan Center for Justice at NYU School of Law; The Supreme Court; Bloomberg 8/22/13

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