'This Is a Crazy System': Justices Ridicule Ease-of-Voting Law

The Supreme Court seems poised to reject a form that simplifies voter registration -- on the grounds that some of its members could have designed a better one.
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Imagine you are a legal immigrant to the United States. You have worked hard, kept a spotless criminal record, mastered English, and learned the rudiments of American government. On your 40th birthday, you go to the federal courthouse in Phoenix to be sworn in.

When the ceremony ends, you ask whether you can do what every citizen can do: register to vote. A helpful clerk hands you the National Mail Voter Registration Form, a postcard. Will this work in Arizona? Not to worry, the clerk assures you. Under the National Voter Registration Act (NVRA), states must "accept and use" this form to register voters. Fill it out, drop it in the mail, welcome to our political community.

On the form, you must attest on penalty of perjury that you are a U.S. citizen. The "state-specific" parts of the form tell you that you must also include your Arizona drivers' license number. You've been driving legally for years, since before 1996.

You mail the form, and wait.

Soon comes a letter from your county registrar. "Let this letter serve as notification that we have not yet received documentation of citizenship. ... Be advised that you are not a registered voter."

Under Arizona law, you learn, you must prove you are a citizen -- even though the federal form does not say so anywhere. Your driver's license number is not good enough -- because, unbeknownst to you or to the public generally, the state driver records have flagged your license with an F -- meaning "foreigner." The F isn't on your license; the general public doesn't even know F flags exist. (The "F" flag stopped being used in 1996, so most of those 33 and under don't face this problem.)

The Arizona law -- Proposition 200 -- sets out the acceptable documents. The law says you can us the number of your naturalization certificate, which of course you have right to hand. You fill it in and send off the new form.

Soon comes another letter. "Let this letter serve as notification that ..." Well, naturalization certificate numbers, it turns out, aren't stored in a database where county officials can use them, so despite what the law says, they aren't accepted. You can't mail in a copy, because it's illegal to photocopy one. The only way to register, it turns out, is to go to the courthouse and present the certificate in person. Nowhere on your federal form was there a warning that your driver's license and naturalization certificate numbers would be rejected.

Here's a question: Did state officials "accept and use" the federal form? Of course, says the state of Arizona. They allowed you to mail it in -- acceptance -- and read it so they could reject your application -- use. After all, they say, employers "accept and use" job applications; they just reject most of them.

No, say a group of Arizona voters and voter advocacy organizations; it is the clear intent of the NVRA that a completed form should provide all the information the state needs. It can check the information against public records to determine citizenship. It can send a letter announcing your registration, and then suspend if the letter is returned as undeliverable. What it can't do is make the voter jump through more hoops than the form requires.

At oral argument Monday in the U.S. Supreme Court, it seemed as if the result might turn on fine parsing of the words "accept and use." But lurking behind the statutory argument was another, more unusual one: at least four of the justices made it clear that they thought they could design a better form.

The textual power at issue in Monday's case, Arizona v. Arizona Inter-Tribal Commission, is granted in Article I § 4 of the Constitution:

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 Place of Choosing Senators.

The NVRA, or "motor-voter" bill, is an exercise of the "make or alter" power. In 1993, Congress determined that many states made it too hard to register. They empowered a federal agency to design a form -- and said that the form "may only" ask about certain things, such as age, address, and citizenship. Then they said all states are required to "use and accept the form."

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Garrett Epps is a contributing writer for The Atlantic. He teaches constitutional law and creative writing for law students at the University of Baltimore, and is the author of American Epic: Reading the U.S. Constitution.

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