As election day approaches, the courts are tackling various challenges to voter laws. Joining the recent decision by the Pennsylvania Supreme Court is the United States Supreme Court.
Yesterday, Monday October 15, 2012, the United States Supreme Court agreed to hear an appeal from the Ninth Circuit's April 12, 2012 decision to strike down Arizona's Proposition 200 requiring voters to provide proof of citizenship in order to register to vote. The Ninth Circuit Court of Appeal stated that under the National Voter Registration Act (NVRA), the states must "accept and use" the federal form to register to vote, which requires prospective voters to swear or affirm by their signature that they are a citizen of the United States. The Arizona law sought to require prosepective voters to produce proof of citizenship in order to register. The Ninth Circuit upheld Proposition 200's provision requiring voters to provide identification at the poll, but stated that the NVRA supercedes the requirement to provide proof of citizenship with the use of the NVRA voter registration form. The Court will not hear oral argument in this case until after the election, in early 2013.
In another voters' rights case, the Supreme Court today declined to stay a decision of the Sixth Circuit Court of Appeal affirming an injunction by the lower court preventing the 2011 revisions to Ohio Rev. Code s. 3509.03 from taking effect to stop voters from casting early ballots during the three days before the November 2012 general election. The Sixth Circuit held that the revisions to the statute were unconstitutional and blocked the revisions from taking effect. The state of Ohio applied to the Supreme Court for a stay of the injunction "pending the filing and disposition of a petition for a writ of certiorari." The Supreme Court stated simply in its order, "The application for stay presented to Justice Kagan, and by her referred to the Court is denied." It remains to be seen if the Supreme Court will ultimately grant certiorari to the State of Ohio, but this will also be decided after the November election.
If anything, this flurry of appellate activity surrounding voters' rights is an indication of just how close this election is expected to be. Every vote counts, and it appears the Republican strategy is to disenfranchise the citizens who are most likely to be a vote for Obama. If this sounds harsh or overstated, take a look at the words of Rep. Daryl Metcalfe (R-PA), or better yet, listen to those of Penn. Republican House Speaker Mike Turzai.
Perhaps the Republican theme is a fear of foreigners. In the 2008 election, it appeared to be the Birthers' fear that a foreign born President would be elected. That red herring had to be dropped in light of the fact that Mitt Romney's father was born in Mexico. In 2012, perhaps the fear is that foreigners are reelecting him.
The United States Supreme Court handed down its long anticiated ruling in Arizona v. Untied States, putting at issue Arizona's controversial immigration law, SB 1070, passed in 2010. The Ninth Circuit struck down the law in its entirety, and Arizona appealed to the US Supreme Court. Today, the US Supreme Court struck down three of four provisions as violating the Supremacy Clause of the US Constitution. The Arizona law sought to criminalize the failure to comply with federal registration requirements for illegal alieans, and seeking employment or engaging in work in Arizona while being an illegal alien. SB 1070 also gave authority to Arizona law enforcement to arrest without a warrant anyone who the officer had probable cause to believe is an illegal alien, and to stop, detain or arrest to determine a person's immigration status. The Supremacy Clause of the Constitution has been interpreted to provide that in areas where the federal government intends that its laws occupy the entire subject matter of that law, no state can enact laws that attempt to address that subject matter. It has long been held that the federal government occupies the entire subject matter of immigration and that states cannot regulate this subject matter. In striking down the criminal elements and the authority to arrest without a warrant granted by SB 1070, the US Supreme Court pointed out that the federal government has established that illegal alien status is a civil, not criminal matter, and that the federal government has the sole discretion to make such policy decisions regarding immigration and its enforcement. The Court stated, "Unauthorized workers trying to support their families, for example, likely pose less danger than alien smugglers or aliens who commit a serious crime." The Court went on to state that the federal government has the power to consider equities in forming policies regarding enforcement of the federal immigration laws. This particular point gets to the heart of the matter. Arixona's SB 1070 sought to make criminals of immigrants, who may be hard working, otherwise law abiding residents. This is not Arizona's call. This is the federal government's call. The scare tactics employed by Arizona law makers that illegal aliens are all rampant, violent criminals, casts a net that ensnares workers trying to make a living and who make a positiove contribution to society. Enacting laws based on fear and ignorance harken back to some of the darker moments in human history, and should have no part in this country's democratic society. Additionally, the Supremacy Clause prevents the 50 states from enacting 50 different sets of immigration laws, as the federal government already has a body of law in place. The Court upheld the provision of SB 1070 that authorizes Arizona law enforcement to "make a 'reasonable attempt . . . to determine the immigration status' of any person they stop, detain, or arrest . . ." The Court emphasized that SB 1070 provided that the "stop and check" provision could not be the result of racial profiling and that communication between federal and state authorities was inherent and imperative. Despite holding the challenge to the stop and check provision of SB 1070 as being premature because Arizona courts did not have an opportunity to interpret how it will be enforced, the Court specifically left open future challenges to the stop and check provision based on Arizona's enforcement and interpretation of its law.
