PHOENIX โ Two state officials filed suit Wednesday in a bid to force the federal Election Assistance Commission to let Arizona add a requirement for proof of citizenship to that agencyโs voter registration form.
Both Secretary of State Ken Bennett and Attorney General Tom Horne admitted they have no evidence that anyone who has used the federal form โ as opposed to the stateโs own form โ voted illegally. Bennett said there are up to 13,000 people who used that form in just Maricopa County alone, though most voluntarily provided the proof the state wants.
Nina Perales, attorney for the Mexican American Legal Defense and Education Fund, which sued Arizona successfully for its failure to accept the federal form, said the state has no such proof because it does not exist.
But Horne called that lack of proof legally irrelevant, not only for Arizona but also for Kansas, which joined in the lawsuit.
โNow thereโs only one issue: Do Arizona and Kansas have the power under Article I Section 2 of the Constitution to determine voter qualifications?โ he said. โAnd if they do have that power, is it unconstitutional for the federal government to tell those states that they are unable to determine the information necessary to exercise that power?โ
Wednesdayโs lawsuit was not only expected, it was foretold by the U.S. Supreme Court in its June ruling that the state cannot ignore a federal law which requires it to โaccept and useโ a federal voter registration form authorized by Congress and designated by the commission. That form requires only that applicants sign an affidavit swearing they are citizens and eligible to vote.
But Justice Antonin Scalia, who wrote the ruling, said the state remains free to ask the commission to add the proof of citizenship requirement to the federal form it designed for Arizona.
Arizona tried that in 2004 after voters approved a measure requiring proof of citizenship, only to have the request rebuffed in a 2-2 vote.
Bennett renewed the request after the June Supreme Court ruling.
But Alice Miller, the commissionโs executive director, said it could not act since there are no sitting members. And Miller, in a letter to Bennett, said she was powerless as a staffer to approve such a change in policy absent the commission.
Horne said the lawsuit, if successful, will force Miller to give the go-ahead. But he conceded whoever loses in federal district court likely will take the case back to the U.S. Supreme Court.
Most of the 3.2 million Arizonans who are registered voters used a state-crafted form.
Nothing in the June court ruling precludes Arizona from demanding that those who use that form provide proof of citizenship like a legible photocopy of a birth certificate, passport, naturalization documents or Indian census number. A driverโs license number can also be used because Arizona law has required proof of citizenship to get a regular license since 1996.
But the federal form is preferred by some groups doing voter registration drives precisely because it does not require those being signed up to have that proof with them.
Horne said there was testimony during the initial trial that about 200 people who were not eligible to vote who had, in fact, been registered. He said they were caught when counties, using voter registration forms, sent out notices calling people for jury duty; they responded that they were not citizens.
But none of those could have been people using the federal form without proof of citizenship: Election officials were refusing to accept them, the reason for the lawsuit in the first place.
Arizona has been required to accept the non-verified forms only in the last year.
Horne said one reason Arizona joined with Kansas in filing suit is because Kansas Secretary of State Ken Kobach is considered an expert in this area.
He also is one of those credited with helping craft Arizonaโs 2010 law aimed at illegal immigration, though most of that was declared illegal by federal courts.
