PASADENA, Calif. -- Arizona is entitled to force would-be voters to prove citizenship so that everyone who is legally entitled to cast a ballot believe in the process, state Attorney General Tom Horne argued Tuesday.
"If there is voter fraud, then honest voters can lose faith in the democratic system,' he told the 9th U.S. Circuit Court of Appeals. "And that can decrease participation by eligible voters.'
But several of the judges questioned whether that sentiment is relevant. More to the point, they wanted to know if that allows the state to refuse to register those who have filled out a federal voter registration form -- a form Congress directed the Election Assistance Commission to create -- unless those signing up provide information that the state wants in addition.
Judge Marsha Berzon said the commission concluded that a requirement to sign an avowal of citizenship, coupled with the threat of federal prosecution, was enough. More to the point, she said the federal law requires Arizona -- and all other states -- to accept and use the federal form.
But a 2004 voter-approved Arizona law requires those who want to register to provide, at the very least, some actual evidence of citizenship, even if it is only the number of a driver's license issued after October 1996 when proof of citizenship became a legal requirement to get that document.
"There's nothing in the statute that the states cannot do that,' Horne responded. He argued that enforces the legitimate interest of states in preventing voter fraud, criticizing the federal form as a "so-called honor system where the only thing you do to check citizenship is to sign on a line.'
Nina Perales, attorney for the Mexican American Legal Defense and Educational Fund, told the court the Arizona law has had an impact. She said in the first 2 1/2 years after it was implemented, more than 31,000 people were denied registration because they did not provide the proof the state wants.
"All of them swore (on the forms) that they were United States citizens and otherwise filled out the application correctly,' she said.
But Judge Richard Clifton said that number, by itself, does not make a difference.
"How many were actually eligible' to register, he asked.
"There is not evidence that they were ineligible,' Perales responded.
"There's nothing else?' interjected Chief Judge Alex Kozinski.
Perales said some of these people did testify in court about their eligibility, though she conceded that number was nowhere near 31,000.
Hanging in the balance is whether Arizona will be able to continue to enforce the provision of the 2004 initiative.
Some of its provisions were aimed at denying public benefits to those not in the country legally. But it also imposed new requirements to prove citizenship to register to vote and provide identification at the polls before casting a ballot.
The only issue before the court Tuesday was that registration provision.
Jon Greenbaum, representing the Inter-Tribal Council of Arizona, said Congress enacted the National Voting Rights Act because "unfair and discriminatory voter registration laws had depressed voter registration, particularly among minority and low-income voters.' What Congress wanted, he told the court, was a uniform way that voters could register.
It was that law which directed the Election Assistance Commission to create that form, a form that does not require proof of citizenship.
Judge Milan Smith Jr. noted, however, that Congress sought to do more than ease the registration process.
"They significantly suggest the purpose ... is to protect the integrity of the electoral process and to ensure that accurate and current voter registration rolls are maintained,' he said. "It seems like what Arizona is doing does help the integrity of the system.'
"It's not Arizona's choice,' Greenbaum responded.
"Congress decided this is the balance that we want to keep,' he continued.
"We're going to make voter registration more available,' Greenbaum explained about the federal law. "At the same time, we're going to make it a federal crime to commit voter registration fraud if you're using the federal form.'
Horne told the court that few people are burdened by the state law. He said virtually all Arizonans have either a driver's license or state non-operator card issued after October 1996, or a federally issued naturalization number.
"Why is that relevant?' interjected Judge Susan Graber.
"It seems to me that the system that Arizona set up matches what Congress permitted, or it doesn't,' she said. "And whether it affects five people or 50,000 people, to me, doesn't relate to what Congress intended.'
U.S. District Court Judge Roslyn Silver upheld the identification requirement after it was first enacted. But last year, in a split decision, a three-judge panel of the 9th Circuit concluded it runs afoul of federal law.
The 11 judges who heard the case Tuesday gave no indication when they will rule. And whoever loses is likely to appeal to the U.S. Supreme Court.