The fight over whether states can demand some sort of identification before allowing voters to cast ballots has finally reached the U.S. Supreme Court as the justices agreed to hear argument on Arizona's law requiring voters to show proof of U.S. citizenship before registering.
In the heat of the final days of the U.S. presidential election the case is not drawing much attention. Any argument and decision in the case won't come until long after Election Day.
And the arguments advanced by both sides in the case may seem as dry as unbuttered toast to the average American. The battle probably appeals mainly to political activists or Supreme Court wonks.
But an eventual Supreme Court decision will help shape the voting landscape of the future.
Republicans who have sponsored such laws say they are necessary to prevent widespread voter fraud. Democrats say Republicans have presented no evidence of widespread fraud, and the laws are only a thinly veiled attempt to suppress the vote of minorities, the elderly and the poor -- those least likely to have a driver's license and most likely to vote Democratic.
The arithmetic on the modern Supreme Court favors voter ID laws.
In 2008's Crawford vs. Marion County, the justices reached a 6-3 judgment approved Indiana's voter ID law, brushing aside Democratic challenges.
But the prevailing opinion was written by liberal Justice John Paul Stevens, and only two other members of the court, conservatives Chief Justice John Roberts and Justice Anthony Kennedy, joined it.
Stevens said Indiana has a legitimate interest in protecting the integrity of its elections, and protecting the public's confidence in elections. Stevens dismissed concerns that majority Republicans in the Legislature were trying to suppress the Democratic vote -- their motive didn't matter.
"While the record contains no evidence that the fraud [the voter ID law] addresses -- in-person voter impersonation at polling places -- has actually occurred in Indiana," Stevens conceded, "such fraud has occurred in other parts of the country, and Indiana's own experience with voter fraud in a 2003 mayoral primary demonstrates a real risk that voter fraud could affect a close election's outcome."
Stevens said, "Because Indiana's [photo ID] cards are free, the inconvenience of going to the Bureau of Motor Vehicles, gathering required documents and posing for a photograph does not qualify as a substantial burden on most voters' right to vote, or represent a significant increase over the usual burdens of voting."
Three conservative court members, Justices Antonin Scalia, Clarence Thomas and Samuel Alito, joined in the judgment but not in Stevens' opinion. In a separate opinion, they said Indiana's voter ID law should be upheld because its overall burden is minimal and justified.
Three liberal justices dissented.
Five of the conservative court members in the 2008 majority remain on the current court -- Robert, Kennedy, Scalia, Thomas and Alito. Together they regularly prevail in politically charged cases -- except for Roberts' surprising defection in the Obamacare case last term.
The Supreme Court agreed last week to hear the Arizona case later this term.
Arizona voters enacted Proposition 200 in 2004, which among other things required voters to provide "satisfactory evidence of U.S. citizenship in order to register to vote."
The case first reached the U.S. Supreme Court in 2006's Purcell vs. Gonzalez. Though the justices did not reach a resolution, they sent the case back down to the lower courts.
A federal judge refused to issue an injunction against the implementation of the law in the case brought by a coalition of Hispanic, Indian and civil rights groups. However, a federal appellate panel, and then the entire 9th U.S. Circuit Court of Appeals reversed, saying the law violated Article I of the U.S. Constitution and the National Voter Registration Act, which requires states to make it easier to register for federal elections.
Article I says in part the "times, places and manner of holding elections for senators and representatives, shall be prescribed in each state by the Legislature thereof; but the Congress may at any time by law make or alter such regulations, except as to the places of choosing senators."
Arizona successfully asked the U.S. Supreme Court for review.
Among the identification evidence accepted under Proposition 200 are a driver's license, birth certificate, naturalization documents, and a U.S. Bureau of Affairs or tribal card number. The law says each county recorder shall reject an application for registration not accompanied by such evidence.
In its petition for review, Arizona asked the Supreme Court to look at whether the appeals court erred "in creating a new heightened pre-emption test under ... [Article I's election clause]," and also made a mistake in "holding that under that test the National Voter Registration Act pre-empts an Arizona law that requests persons who are registering to vote to show evidence that they are eligible to vote?"
In other words, the state said the appeals court erred in saying the state law was trumped by the federal law.
In a response brief for some members of the coalition, lawyers argued the appeals court "carefully examined the text of the Constitution, followed this [Supreme] Court's elections clause cases and correctly concluded that the standards for conducting a pre-emption analysis under the elections clause are less deferential to states than the standards for conducting a pre-emption analysis under the supremacy clause."
The supremacy clause, in Article VI of the Constitution, says federal law prevails when there is a conflict with state law.
A second response brief from a different group in the coalition tries to take an even more forceful tone.
"Arizona's argument fails on many levels," the brief told the Supreme Court. "To begin with ... a state's authority to regulate federal elections does not fall within its 10th Amendment reserved power, rather it is a delegated authority under Article I, Section 4."
The 10th Amendment is the foundation of federalism, saying, "The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people."
"Arizona's argument that the [U.S. Court of Appeals for the 9th Circuit in San Francisco] did not find a conflict between the NVRA and Proposition 200 is flatly wrong," the brief said. "Contrary to Arizona's claim, the [appeals court] expressly found a conflict between the NVRA and Proposition 200. The 9th Circuit majority's concluding paragraph states ... '[g]iven the paramount authority delegated to Congress by the elections clause, we conclude that the NVRA supersedes Proposition 200's conflicting registration requirement for federal elections.'"
The brief said the appeals court majority ruled Arizona's "insistence on engrafting an additional requirement on the federal form [for registration under the NVRA] ... accentuates the conflict between the state and federal procedures."
The principle of requiring some kind of voter ID is widespread in the United States and the outcome of the Supreme Court Arizona case may shape the vote of the future.
Seventeen states have enacted laws requiring the presentation of a government-issued photo identification, such as a driver's license. The Brennan Center for Justice said those 17 states account for 218 of the 270 electoral votes needed to win the presidency.
If the laws are implemented, the center said, millions of voters would be affected.
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