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Kansas, Arizona Petition for Cert in Voter Registration Case

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By Casey C. Sullivan, Esq. on March 27, 2015 3:50 PM

Several months after the Tenth Circuit struck down Arizona and Kansas' proof of citizenship voter registration lawsuit, the states have asked the Supreme Court to hear the case. The Tenth had rejected a suit by the two states which sought to force the Election Assistance Commission to include a proof of citizenship requirement on federal voter registration forms. Arizona and Kansas had failed to demonstrate that voter registration fraud via the federal forms prevented either state from enforcing their voter qualification laws, the court ruled.

The Election Assistance Commission has until April 23rd to respond to the states' petition for certiorari.

Will Arizona Get A Redo?

If SCOTUS accepts the case, this will be Arizona's second shot at enforcing proof of citizenship voter rules in the High Court. In 2013, in the case of Arizona v. ITCA, the court threw out Arizona's election law which required officials to "reject" voter registration forms, including the federal form, that were not accompanied by proof of citizenship. It flatly conflicted with the National Voter Registration Act, the Court found, and -- thanks Supremacy Clause! -- was preempted by the federal law.

If Arizona does get another shot, the Tenth Circuit's opinion doesn't make it look like they'll succeed. The plaintiff states had argued that the EAC had no choice but to accept their demands to include extra information in the federal forms. This, the Tenth determined, isn't just wrong, but it would go against the holding in Arizona v. ITCA. That the EAC has a nondiscretionary duty to the states was considered and rejected by the Court already, according to the Tenth.

Is an Appeal Futile?

If the Tenth is right, then it probably is. SCOTUS hasn't changed in any significant way since Arizona v. ITCA. Then again, it was the Court that invited the states to petition the EAC in the first place, so perhaps they would be more sympathetic to the state's position.

There are also the political points to be won, even if the case itself is lost. The current conflict is just one in a series of disputes dating back to 2004. Whether they win or not, politicians in Arizona and Kansas have found consistent success wringing their hands over the thought that undocumented immigrants are swarming polling places, despite there being little evidence of voter fraud on any significant scale.

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