Ninth Circuit Grants En Banc Review in Arizona Voter Registration Case

May 3, 2011

On April 27, 2011, the Ninth Circuit Court of Appeals granted en banc review in Gonzalez v. Arizona, Case No. 08-17094. Gonzalez involves a preemption challenge to Arizona Proposition 200’s requirement that individuals registering to vote must provide proof of citizenship at the time they register to vote—and thus prove that they are indeed eligible to vote.

In 2006, various individuals and groups represented by MALDEF and the ACLU sued to block this provision of Prop 200 before the November presidential elections. On appeal that case reached the United States Supreme Court, which reversed a lower court’s holding that Prop 200 was preempted by the National Voter Registration Act (“Motor Voter Act”). On remand in 2007, the Ninth Circuit held that the Motor Voter Act “plainly allows states, at least to some extent, to require their citizens to present evidence of citizenship when registering to vote.” Gonzalez v. Arizona (I), 485 F.3d 1041, 1050-51 (9th Cir. 2007).

That opinion seemed to settle the issue, but the case was returned to the trial court and then appealed yet again to the Ninth Circuit. Then, in the very same case three years down the road, a different Ninth Circuit three judge panel held that the Motor Voter Act did preempt states from requiring individuals to prove that they were citizens, and thus eligible to vote, at the time of motor vehicle registration.

In November 2010, the State of Arizona petitioned for a rehearing en banc, asking the full Ninth Circuit Court to rehear the appeal. IRLI filed an amicus brief (attached here) on behalf of the State of Arizona, urging the court to rehear the case. IRLI stressed that review was warranted because the panel opinion contradicted the plain text of the Motor Voter Act and conflicted with the Supreme Court and other federal appellate court precedents.

IRLI believes the final outcome of this case will likely define the extent to which states are allowed to prevent non-citizens from being added to their voter rolls. A final decision could affect other states that have enacted laws which require proof of eligibility to vote at registration. Those states have determined that preventing unauthorized voting is in their respective state’s interest.