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Supreme Court Preview: The National Voter Registration Act and Conflicting State Requirements

The Supreme Court Monday will consider Arizona’s restrictive voter registration law. The record clearly shows the requirement violates federal law and should not stand.

  • Sidney Rosdeitcher
  • Katriana Roh
Published: March 14, 2013

*Disclosure: the Brennan Center submitted a brief amici curiae on behalf of Constitutional Law Professors in support of Respondents.

On March 18, 2013, the Supreme Court will hear argument in State of Arizona, et al. v. The Inter Tribal Council of Arizona, Inc., et al.,[1] a challenge to an Arizona state law that requires applicants for voter registration in federal elections to supply proof of citizenship beyond that already required by Congress in the National Voter Registration Act of 1993 (NVRA).

Congress enacted the NVRA to provide a uniform and simplified voter registration form (the “Federal Form”) designed to encourage and facilitate voter registration for federal elections. The NVRA requires States to make the Federal Form available at various state agencies, such as motor vehicle licensing offices, and to “accept and use” those forms submitted by applicants for registration in federal elections. At issue here is whether states, like Arizona, can subvert Congress’s efforts by rejecting applications on the Federal Form unless the applicant also provides additional information beyond that required in the Federal Form. In this case, it is claimed that Arizona’s requirements make it especially difficult for Native American and naturalized citizens to register.

The Court will review the Ninth Circuit’s decision holding that the NVRA, as an exercise of Congress’s powers under the Elections Clause[2] to regulate the “time, places and manner” of federal elections, preempts the Arizona law, rendering its additional requirements invalid.

The case has drawn a large number of amicus briefs on both sides of the issue, including an amicus brief by the United States urging affirmance of the Ninth Circuit decision and an amicus by a number of states urging reversal.

Here are the details.


In 1993, Congress passed the NVRA, which provided, inter alia, a mail-in system of voter registration for Federal elections. The NVRA delegated to the United States Election Assistance Commission (“EAC”) responsibility for developing a uniform, national mail-in registration form. The NVRA voting form (the “Federal Form”), developed by the EAC after consultation with the states, including Arizona, requires, among other things, that voter registration applicants attest, under oath, to their voting qualifications, including U.S. citizenship. The States must make the form widely available at a variety of state offices including motor vehicle licensing agencies (hence the nickname “motor voter registration law”). Most importantly, States are required to “accept and use” the EAC-prescribed form in registering applicants to vote in federal elections.[3]

In 2004, Arizona, by referendum, adopted Proposition 200, a law requiring election officials to reject Federal Forms not accompanied by certain additional “satisfactory” evidence of U.S. citizenship. Applications that fail to provide this state-mandated proof are rejected, with leave to re-submit the application once the “deficiency” is corrected. “Satisfactory” evidence of citizenship includes a state driver’s license, a bureau of Indian affairs card number, tribal treaty card number, tribal enrollment number, passport, birth certificate, or naturalization documents. The stated purpose of the law is to cut down on voter fraud. Arizona submitted Proposition 200 to the EAC for approval. In 2006, the Executive Director of the EAC instructed Arizona that, while it could use its own form for voter registration for state elections, it had to use the Federal Form for federal elections. Nonetheless, Arizona implemented the law and began rejecting federal voter applications that did not include the additional proof of citizenship required by the Arizona law.

In May 2006, two groups of plaintiffs filed suit in the U.S. District Court for the District of Arizona, arguing, among other claims, that Arizona was in violation of the NVRA due to its alleged failure to “accept and use” the Federal Form. These two cases, which were immediately consolidated, included a wide range of plaintiffs impacted by the law, such as the Inter Tribal Council of Arizona, Inc. and the Hopi Tribe and several individuals and advocacy groups whose membership included a number of naturalized citizens (the “Gonzalez plaintiffs”). All plaintiffs asserted that the additional proof of citizenship requirement made it difficult for them or the constituency they represent to register to vote.[4]

The Inter Tribal Council, for example, noted that its members were especially prejudiced because, although the statute permits proof of citizenship through a bureau of Indian affairs card number, tribal treaty card number or tribal enrollment number, those numbers are not in use in Arizona. The Council further noted that much of the group it represents lacks a driver’s license and is indigent, making it difficult for them to obtain a certified birth certificate. Accordingly, these people are unable to vote in federal or state elections within Arizona. The Gonzalez plaintiffs challenged the law on similar grounds, and asserted particular harm because it is especially difficult for naturalized citizens to obtain a useable driver’s license or other form of acceptable proof of citizenship.

Plaintiffs in 2006 requested preliminary relief in the form of an injunction against operation of the Arizona law pending resolution of their case. The District Court denied that request. The Ninth Circuit then reversed and issued an emergency injunction pending interlocutory appeal. Arizona appealed to the Supreme Court, which reversed the Ninth Circuit’s grant of an interlocutory appeal. Without ruling on the merits, but noting the importance of the interest in preventing voter fraud, the Court vacated the injunction on the grounds that the Ninth Circuit had made its decision on an insufficiently developed record.[5] On remand, the Ninth Circuit affirmed the District Court’s denial of preliminary relief and remanded the case to the district court for a determination on the merits of plaintiffs’ remaining claims.

The District Court then granted defendants’ motion for summary judgment dismissing plaintiffs’ claim that the NVRA precluded Arizona from requiring additional evidence of citizenship. The Ninth Circuit reversed the District Court’s decision on the NVRA claim and upheld the District Court’s decision on the remaining claims. Arizona then petitioned for and received rehearing en banc.

The en banc court concluded that the NVRA preempts Proposition 200 as applied to the Federal Form. The court first emphasized that the Elections Clause provided the proper basis for analysis, explaining that this Clause, in contrast to the Supremacy Clause,[6] “affects… an area in which the states have no inherent or reserved power: the regulation of federal elections” and that accordingly does not involve issues of dual sovereignty that inform the standards for preemption under the Supremacy Clause. It found that Arizona’s evidence of citizenship requirement meant that Arizona was not “accept[ing] and us[ing]” the Federal Form as required under the NVRA and that accordingly, Arizona’s requirement was superseded by the NVRA.[7] The en banc Court also noted that the Arizona requirement was in conflict with the federal policy of streamlining the registration process. Chief Judge Kozinski filed a concurring opinion emphasizing that the legislative history of the NVRA showed that both Houses of Congress specifically rejected an effort to authorize what Arizona was seeking to do.[8]

The Supreme Court granted Arizona’s petition to review the Ninth Circuit’s decision.

Arizona’s Arguments in the Supreme Court

Before the Supreme Court, Arizona argues that Proposition 200 is not preempted by the NVRA and that there is in fact no conflict between the requirements of Proposition 200 and the NVRA. Arizona bases its appeal on three grounds: first, it claims that the Ninth Circuit applied a “new, unprecedented” preemption test in reviewing the preemption challenge under the Elections Clause, that differs from the preemption test used under the Supremacy Clause. Arizona argues that the Supremacy Clause preemption test applies a presumption against preemption and requires preemption only where state laws directly conflict with federal law—that is, where compliance with both sets of laws is impossible—but not where state laws merely differ from federal law. Second, it argues that Proposition 200 did not displace the requirements of the Federal Form, but merely supplemented them, so that Arizona is “accepting and using” the Federal Form in a manner consistent with the statute. Arizona notes that this reading is bolstered by the fact that the NVRA permits states to establish their own state form; that the NVRA requires the EAC to consult with the states in preparing the Federal Form; and that the EAC may include state specific information in the Federal Form. Arizona argues that its reading is also required to implement the strong policy endorsed by the Supreme Court in Purcell that preventing voter fraud is an important interest.

Finally, Arizona argues, any doubts concerning whether the NVRA preempts Proposition 200 should be resolved against preemption, so as to avoid serious constitutional concerns about the NVRA under the Voter Qualifications Clauses of the Constitution.[9] Those clauses give the states the exclusive authority to establish voter qualifications; Arizona argues that there is a serious question as to whether proof of citizenship is a voter qualification that is governed by the Qualifications Clauses, and therefore not subject to the Elections Clause. Arizona also argues that the EAC’s decision deserves no deference because it was not made using the appropriate procedures.

Respondents’ Response

Respondents reject each of these arguments. They assert that the plain text of the NVRA precludes Arizona from requiring a separate procedure for proof of citizenship. Respondents point to the explicit requirement that states “accept and use” the Federal Form and that Arizona’s rejection of applications using the Federal Form if not accompanied by the proof Arizona requires is flatly inconsistent with that text. Respondents note that the Arizona procedure for proof of citizenship is not incorporated in the Federal Form and that the EAC specifically rejected Arizona’s request that it be so incorporated. They point out that while the EAC is required to consult with the states, the EAC is given the ultimate authority to decide what specific state information to include and the EAC rejected a request to include Arizona’s procedure. They also point out that in permitting states to prepare their own form for state elections the NVRA specifies that such a state form is “in addition to” the Federal form, not in place of it.

Respondents also point to other provisions of the NVRA that confirm their reading of the text. The NVRA provides, for example, that the EAC is to include in the Federal Form “such identifying information … and other information … necessary to enable the State election official to assess the eligibility of the applicant;”[10] and that the EAC shall “specif[y] each eligibility requirement (including citizenship),” and include an “attestation that the applicant meets each such requirement.”[11] Thus it is clear, respondents argue, that it is the EAC, not the states, that decides what information needs to be included in the Federal Form that is sufficient to enable state officials to determine citizenship.

Respondents also note that the Arizona procedure conflicts not only with the plain language of the NVRA, but with Congress’s purpose in enacting the NVRA to create a uniform national voter registration form for Federal elections to facilitate and increase voter registration. They also point to the legislative history, emphasized by Judge Kozinski in his concurrence to the en banc decision, that both Houses of Congress specifically rejected an amendment to the NVRA proposed by the states that would have permitted the states to incorporate a “proof of citizenship” procedure into the Federal Form.

Respondents acknowledge that one purpose of Congress was to prevent voter fraud, but emphasize that the procedures provided by the NVRA for verifying eligibility, including citizenship, described above, do just that. Respondents also point to the Help America Vote Act, enacted shortly after the NVRA,[12] which was designed specifically to address these concerns. HAVA requires that the Federal Form include the question “Are you a citizen of the United States?,” and, if the answer is no, the applicant is instructed not to submit the form.[13] Applications that fail to respond to this question are returned to the applicant for an opportunity to respond to the question. No application can be approved without a “yes” answer to the question.

Finally, respondents dismiss the constitutional concerns urged by Arizona as a reason to adopt its reading of the NVRA. Respondents emphasize the breadth of the authority the Elections Clause confers on Congress to regulate the “time, place and manner” of federal elections. They point to Supreme Court recognition that the Clause encompasses voter registration procedures[14] and that the Supreme Court has consistently used a different approach for deciding preemption issues under the Elections Clause in recognition of the fact that unlike the Supremacy Clause, the Elections Clause was not intended to balance federal power with state sovereignty because prior to the adoption of the Constitution the states never had the power to regulate federal elections. Respondents reject the argument that “proof of citizenship” might be considered a “qualification” within the meaning of the Qualifications Clauses, noting that the Arizona Constitution in designating voter qualifications refers simply to citizenship and makes no mention of the procedures for determining citizenship. Reading the Qualifications Clauses to encompass such administrative procedures as “qualifications,” respondents argue, would effectively nullify the Elections Clause powers long recognized as giving Congress powers to regulate registration procedures for federal elections.[15]


The text of the NVRA, its objective to establish a uniform national registration procedure for federal elections, and the legislative history overwhelmingly support the conclusion that Arizona’s procedures for proof of citizenship are preempted by the NVRA and that the Ninth Circuit’s decision should be affirmed. While the conservative Justices usually lean toward protecting state sovereignty, as precedent shows, that consideration should have no weight where, as here, Congress’s exercise of its Election Clause powers is involved.

[1]       No. 12–71.

[2]       U.S. Const., Art. I §4.

[3]       42 U.S.C. §§1973gg-4(a)1, 1973gg-5(a)(4)(A)(iii), 1973gg-7(a)(2).

[4]       Plaintiffs also challenged Arizona’s voter identification laws for in-person voting. Supreme Court review of the dismissal of those claims has not been sought.

[5]       Purcell v.Gonzalez, 549 U.S. 1 (2006).

[6]       The Supremacy Clause, Article VI, Clause 2 of the U.S. Constitution provides, that U.S. law is the “supreme law of the land.”

[7]       677 F.3d 383 (9th Cir. 2012). The en banc Court also upheld separate voter-identification requirements included in Proposition 200. Supreme Court review of that ruling has not been sought.

[8]       Id. at 439–432 (Kozinski, J., concurring).

[9]       U.S. Const., Art. I, §2, cl. 1; id. amend. XVII.

[10]     42 U.S.C. §1973gg-7(b) (1).

[11]     Id. at § 1973gg-7(b) (2).

[12]     42 U.S.C. § 15483.

[13]     42 U.S.C. § 15483(b)(4)(A).

[14] See Ex Parte Siebold, 100 U.S. 371 (1879).

[15]     See also the extensive examination of the extensive powers conferred on Congress by the Elections Clause in the Brief Amici Curiae of Constitutional Law Professors in Support of Respondents.