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[Image courtesy of azpm]

In yesterday’s blog, I looked at how the State of Kansas is moving toward a two-track registration system in the wake of a dispute with the federal government about the interaction of state proof-of-citizenship laws and the federal registration form.

That blog post was apparently fortuitously well-timed, because later in the day yesterday Arizona Attorney General Tom Horne issued an opinion that clears the way for Arizona to move to two-track registration while laying out a legal argument that would appear to support such a system in any state contemplating proof-of-citizenship.

The most interesting part of the opinion concerns the legality under federal law of a two-track registration system. First, the opinion cites Mississippi’s decision to attempt a two-track system after enactment of the National Voter Registration Act – a plan that was halted by the Supreme Court in Young v. Fordice because certain aspects of the change were not precleared under Section 5 of the Voting Rights Act. Nevertheless, the AG’s opinion cites the following passage from Young:

If Mississippi means that the NVRA does not forbid two systems and that §5 of the VRA does not categorically–without more–forbid a State to maintain a dual system, we agree. [emphasis in original]

The opinion then goes on to assert that the distinction inherent in the two-track system is valid, unlike Virginia’s attempt in the 1960s to create such a system in response to enactment of the Twenty-Fourth Amendment banning poll taxes. Then, a federal court held (in Haskins v. Davis) that since the original poll tax was unconstitutional, a two-track system based on poll taxes was also invalid. The Arizona opinion, on the other hand, notes that proof-of-citizenship laws create “a legitimate reason for the distinction between state and federal registration systems” (p. 8) and thus the two-track system is valid.

Finally, the opinion asserts that Arizona’s state constitution – which requires that state elections be “free and equal” – does not prohibit a two-track system since individuals who have not provided proof of citizenship are not eligible to vote in state elections and therefore not entitled to state constitutional protection. While an Illinois court found the opposite based on very similar language in 1996 (Orr v. Edgar), the Arizona opinion says that “we believe that Arizona courts would not apply the provision the same way [that] court did”, citing cases applying the provision to cases on voting technology and felon disenfranchisement. (pp. 10-12)

After this analysis and a reading of state law regarding ballots, the opinion concludes that “Arizona law does not preclude using one form of ballots for federal offices only and another form for all state offices and measures.”

This opinion is important not just for Arizona, but also as a potential model for other states considering proof-of-citizenship laws but unsure about the impact on registration. For that reason, I have almost no doubt that Horne’s opinion will be challenged – in both the courthouse and the court of public opinion – as the fight to define who is eligible to vote rages on in the states.

Stay tuned …