Two weeks after its initial ruling allowing Arizona to require proof of citizenship for voter registrations, the Ninth Circuit Court of Appeals reversed a ruling from its motions panel.
That means that state voter registration forms may be accepted without proof of citizenship, as they have been since the League of Latin American (LULAC ) citizens Consent Decree went into effect over eight years ago.
The LULAC Consent Decree was the end result of a lawsuit against Arizona’s requirements of Documentary Proof of Citizenship (DPOC). Under the consent decree, Arizona agreed to accept state voter registration forms without DPOC and register them as federal-only voters. Once a court approves a consent decree, it carries the same weight and enforcement of a final judgment.
The Supreme Court ruled in 2013 that the National Voting Rights Act (NVRA) prohibits Arizona from requiring DPOC of voters registering with the federal voter registration form.
In the 2-1 ruling for Mi Familia Vota v. Fontes, the court determined that the motions panel overlooked specific considerations pertaining to election cases and “misunderstood the extent of confusion and chaos” such a change to election rules that the contested legislation, ARS 16-121.01 (C) had brought
The court stated that the state legislature’s new enactment of a DPOC requirement for state forms was an “upset [to] the status quo” because it altered voter registration rules shortly before the primary election last month, and well into the registration timeline for the upcoming election.
“The motions panel overlooked this fundamental principle of judicial restraint, resulting in manifest injustice to voters and election officials alike,” said the court.
The Ninth Circuit also wrote that the DPOC requirement caused elections officials to choose between violating the state law, a class 6 felony, or violating the consent decree provisions within the Election Procedures Manual, a class 2 misdemeanor. The court characterized this as a “manifest injustice” carried out by the motions panel.
“Elections officials are now subject to conflicting criminal penalties, orders, and policies. Identically situated voter registration applicants are treated differently depending on the voter registration application form they picked up,” said the court. “All Arizonans must now navigate an arcane web of shifting and confusing rules that will without a doubt dissuade some who are otherwise eligible and willing from exercising the fundamental right to vote.”
The court wrote that nothing would change the outcome of their ruling, unless the LULAC Consent Decree was modified or set aside.
“Intervenors-Defendants-Appellants offer no authority to suggest that a state legislature may nullify a final judgment entered by an Article III court which Intervenors-Defendants-Appellants have not sought to set aside, modify, or otherwise terminate,” stated the court.
The court also rejected the argument that striking DPOC would cause irreparable harm to either the Republican National Committee or lawmakers supportive of the DPOC requirement.
“[T]he RNC has not at any point explained why the use of the State Form to register applicants without accompanying DPOC to vote in federal elections, when identically situated applicants may register for at least federal elections without accompanying DPOC through the Federal Form even with a stay in place, inflicts an irreparable ‘competitive injury’ on the RNC,” said the court.
Counsel defending DPOC for state voter registration forms informed Arizonans that they intend to file an emergency petition with the Supreme Court at some point within the next week.
The one judge to dissent from the Ninth Circuit Court ruling, Judge Patrick Bumatay, noted that his court had exercised an “irregular and strongly disfavored” power by reconsidering the motion panel’s order, usually reserved for actions by colleagues that amount to “a manifest injustice.” Bumatay disagreed. He said that the lawmakers and other Intervenor-Appellants have proved likelihood of success on the merits, irreparable harm, balance of interests, and public interest.
“With the political nature of this case, we should be especially careful to avoid the use of unconventional or disfavored procedures,” said Butamay.
Butamay contended that the LULAC Consent Decree wasn’t binding on the Arizona legislature. He said that such a perception of permanent judicial power over lawmakers presented separation-of-powers concerns. Further, Butamay argued that the NVRA doesn’t preempt the DPOC requirement, and that the state would face irreparable harm by having its statutory authority enjoined.
Further, Bumatay noted that the significance of this reverse ruling had nothing to do with merit of the claims, but the random assignment of the reconsideration.
“All the public can take away from this episode is that four judges of the Ninth Circuit have voted to partially stay the injunction here, while two other judges voted against it,” said Butamay. “The two judges prevail — not because of any special insight, but because of the luck of an internal Ninth Circuit draw.”
Kane Wickham
