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Arizona v ITCA amicus

Arizona v ITCA amicus

Page 1: Arizona v ITCA amicus

Category:General

Number of Pages:16

Date Created:December 14, 2012

Date Uploaded to the Library:February 20, 2014

Tags:ARGUMENT, Citizenship, proposition, proof, pearce, Registration, Ninth, voter, table, senator, arizona, Congress, Counsel, Circuit, federal, State, Supreme Court, states, united, court, EPA, IRS, ICE, CIA


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No. 12-71 THE 
Supreme Court the United States 
_________ 
 
STATE ARIZONA, AL., 
Petitioners, 
 
INTER TRIBAL COUNCIL ARIZONA, AL., 
Respondents. 
_________ Writ Certiorari the  
United States Court Appeals  
for the Ninth Circuit 
_________ 
 
BRIEF STATE SENATOR  
RUSSELL PEARCE AMICUS CURIAE SUPPORT PETITIONERS 
_________ 
 
 
James Peterson 
Counsel Record 
JUDICIAL WATCH, INC. 
425 Third Street, S.W. 
Washington,  20024 
jpeterson@judicialwatch.org 
(202) 646-5172 
Counsel for Amicus Curiae 
 
QUESTION PRESENTED 
 
 The question presented whether Arizonas proof-of-citizenship requirement register vote mail consistent with the National Voter Registration Act. 
 
  
  
TABLE CONTENTS 
 
QUESTION PRESENTED ......................................... 
 
TABLE CONTENTS ............................................ 
 
TABLE AUTHORITIES ..................................... iii 
 
INTEREST THE AMICUS CURIAE ...................1 
 
SUMMARY ARGUMENT  ....................................3 
 
ARGUMENT ...............................................................3 The NVRA Does Not Bar States from     Requiring Those Registering Mail    Provide Proof Citizenship  .........................4 The Statutory Text Plainly Allows      Arizona Develop and Use Its Own     Form ................................................................4 The Accept and Use Requirement     the Federal Form Does Not Prohibit     Additional Requirements ...............................6 
 
II. Upheld, The Ninth Circuits Ruling     Would Impose Significant Burden    Arizona and Other States ..............................9 
  
CONCLUSION ..........................................................  
TABLE AUTHORITIES 
 
CASES 
 
Arizona United States,  
 132 Ct. 2492 (2011)  ..........................................2 
 
Barnhart Peabody Coal Co.,  
 537 U.S. 149 (2003)  ..............................................7 
 
Caminetti United States,  
 242 U.S. 470 (1917)  ..............................................5 
 
Chamber Commerce Whiting,  
 131 Ct. 1968 (2011)  ..........................................1 Parte Siebold,  
 100 U.S. 371 (1879)  .......................................... 
 
Gonzalez Arizona,  
 677 F.3d 383 (9th Cir. 2012) ............................ 
 
Kucana Holder,  
 558 U.S. 233, 130 Ct. 827 (2010) .....................7 
 
 
STATUTES AND CONSTITUTIONAL PROVISIONS 
 
Ariz. Rev. Stat.  16-166(F)  ................................... U.S.C.  1973gg-4(a)(1)  ................................... U.S.C.  1973gg-4(a)(2)  ....................... U.S.C.  1973gg-7(b)  ........................................ U.S.C.  1973gg-7(b)(1)  ..................................... U.S.C.  1973gg-7(b)(2)  ..................................... 
 
INTEREST THE AMICUS CURIAE1 Pursuant Supreme Court Rule 37.6, amicus states that counsel for party authored this brief whole part; and that person entity, other than amicus and his counsel, made monetary contribution intended fund the preparation and submission this brief.  All parties have consented the filing this brief; letters reflecting this blanket consent have been lodged with the Clerk. Senator Pearce was member the Legislature for eleven years, including serving Senate President. 
 
 State Senator Russell Pearce the author of, and driving force behind the Arizona Taxpayer and Citizen Protection Act, known Proposition 200. the author Proposition 200, Senator Pearce submits this brief support Petitioners and offers his unique perspective the author the measure.  
 During his years the Arizona State Legislature,2 Senator Pearce authored numerous historic legislative initiatives designed protect the citizens Arizona from the adverse effects unlawfully present aliens and, most importantly, uphold the rule law.  These include:  Proposition 100, State constitutional amendment deny bond any person unlawfully present the United States who commits serious crime Arizona; Proposition 102, which states that person unlawfully present the United States who sues American citizen cannot receive punitive damages;   the Legal Arizona Workers Act, upheld this Court Chamber Commerce Whiting, 131 Ct. 1968 (2011) (prohibiting employers from hiring unauthorized workers and requiring use federal E-Verify system confirm employee eligibility); and 
the Support Our Law Enforcement and Safe Neighborhoods Act, known SB 1070, the key provision which was upheld the Court last Term Arizona United States, 132 Ct. 2492 (2011).   
 
 Senator Pearces initiatives have served models for similar legislation numerous other States across the nation, including numerous common-sense reforms prevent non-citizens from illegally voting federal elections.  Proposition 200, adopted overwhelming public initiative 2004, one these measures and was designed ensure the integrity our electoral system.  Proposition 200 was intended prevent voting fraud, limit access certain public benefits ineligible individuals, and increase reporting state and local government officials federal immigration authorities when they become aware violations federal immigration law those who have unlawfully applied for public benefits. regard the voter registration provision issue here, Senator Pearce carefully crafted Proposition 200 rely the States authority set voter eligibility requirements and protect the integrity the election process.  Proposition 200 reflects entirely common sense precaution adopted the citizens Arizona against fraudulent voting non-citizens. contrast, the Ninth Circuits ruling prohibits the use any form identification prevent voter registration fraud other than mere signature federal form. author Proposition 200, Senator Pearce has direct interest this matter, and therefore, respectfully submits this amicus curiae brief. 
 
SUMMARY ARGUMENT 
 
 Proposition 200s proof citizenship requirement for voter registration applicants entirely consistent with the National Voter Registration Act (NVRA), simply requires individual seeking register vote federal elections provide evidence citizenship.  Because Proposition 200 fits comfortably within the plain language the NVRA, the Ninth Circuit erred its consideration and conclusion that Proposition 200 preempted. reaffirm that Arizona retains the authority enact such common sense measure, this Court should reverse the decision below. 
 
ARGUMENT 
 
 Proposition 200 requires prospective voters Arizona provide proof U.S. citizenship order register vote.  Ariz. Rev. Stat.  16-166(F).  Specifically, Proposition 200 provides that state election officials shall reject any application for registration that not accompanied satisfactory evidence United States citizenship.  Such evidence may include drivers license, photocopy birth certificate passport, naturalization documents, other documents that are meant proof that [may be] established pursuant federal immigration laws. 
 
 Contrary the view Ninth Circuit, Proposition 200 entirely consistent with the plain language the NVRA.  Because Proposition 200 was carefully crafted Senator Pearce reliance this fact, the Ninth Circuit should reversed. The NVRA Does Not Bar States from    Requiring Those Registering Mail   Provide Proof Citizenship. 
 
 Proposition 200s proof-of-citizenship provision entirely consistent with the NVRA.  That federal statute requires States provide the option voter registration mail for federal elections completion the National Mail Voter Registration Form (the Federal Form). assure that only eligible citizens register vote using the Federal Form, Arizona requires additional form which requires proof citizenship. The Statutory Text Plainly Allows     Arizona Develop and Use Its Own    Form. 
 
 While still required accept and use the Federal Form, State expressly authorized develop and use its own registration form certain circumstances.  The plain text the NVRA authorizes State develop and use mail voter registration form for the registration voters elections for Federal office, addition the Federal Form, meets all the criteria stated section 1973gg-7(b). U.S.C.  1973gg-4(a)(2).  These criteria include requirement that mail 
voter registration form may require only such identifying information necessary enable the appropriate State election official assess the eligibility the applicant . U.S.C.  1973gg-7(b)(1) (emphasis added).  Section 1973gg-7(b)(2) then specifies that citizenship necessary eligibility requirement.   
 
 Thus, the NVRA expressly permits Arizona require proof eligibility, including proof citizenship, because it identifying information necessary enable the State election official assess eligibility. U.S.C.  1973gg-7(b)(1). undisputed that Arizona also accepts and uses the Federal Form. effect, the NVRA sets minimum requirement reflected the Federal Form but also allows State require more, long within the bounds  1973gg-7(b). additional State form requiring proof citizenship entirely within the bounds the statute.  Caminetti United States, 242 U.S. 470, 485 (1917) (It elementary that the meaning statute must, the first instance, sought the language which the act framed [and so,] the sole function the courts enforce according its terms.).  
 
 Significantly, while State form must comply with the same general standards the Federal Form, there mandate that states are limited the information included the Federal Form that the Federal Form complete application. U.S.C.  1973gg-4(a)(2). State has discretion develop and use form its own design, long consistent with  1973gg-7(b).  Thus, the statute 
expressly authorizes State, consistent with the standards set forth  1973gg-7(b), require additional information outside the Federal Form for voter registration. The Accept and Use Requirement   the Federal Form Does Not Prohibit    Additional Requirements. 
 
 The Ninth Circuit concluded that the accept and use provisions the NVRA were conflict with the proof-of-citizenship requirement Proposition 200. fact, the accept and use requirements the Federal Form ( 1973gg-4(a)(1)-(2)) not prohibit requirements beyond those included the Federal Form.  Section 1973gg-4(a)(2) makes clear that State not limited only the Federal Form for federal voter registration.  The plain text the statute allows Arizona develop its own form require proof-of-citizenship elections for federal office, has done through Proposition 200. undisputed that Arizona uses the Federal Form for registration voters federal elections. The requirement accept and use the Federal Form does not preclude states from imposing additional requirements.  The only real issue then whether Proposition 200s requirement proof citizenship conflicts with the use the Federal Form that the requirement proof citizenship that preempted.  The Ninth Circuit concluded that the NVRA preempts the proof-of-citizenship requirement, because the NVRA requires states accept and use the Federal Form and Proposition 
200s requirement reject any application for registration that not accompanied satisfactory evidence United States citizenship not operate harmoniously. .  Gonzalez Arizona, 677 F.3d 383, 398 (9th Cir. 2012) (citing Ariz. Rev. Stat.  16-166(F)). This conclusion was based misreading the statutes. 
 
 First, beyond dispute that the NVRA explicitly allows states develop and use form [i]n addition accepting and using the [Federal Form]. U.S.C.  1973gg-4(a)(2) (emphasis added).  Moreover, provision the NVRA prohibits States from requiring additional identifying documents verify voters eligibility. fact, the NVRA only expressly prohibits states from requiring notarization other formal authentication. U.S.C.  1973gg-7(b)(3).  Barnhart Peabody Coal Co., 537 U.S. 149, 168, (2003) (citation omitted) (We read the enumeration one case exclude another [if] fair suppose that Congress considered the unnamed possibility and meant say it. .).  Thus, while the NVRA prohibits requiring notarization other formal authentication, notably does not prohibit proof-of-citizenship, while expressly recognizing its importance voter registration. U.S.C.  1973gg-7(b); see also Kucana Holder, 558 U.S. 233, 130 Ct. 827, 838 (2010) (Where Congress includes particular language one section statute but omits another section the same Act, generally presumed that Congress acts intentionally and purposely the disparate inclusion exclusion. (alteration and citation omitted)).   
 
 The NVRA also does not provide that the exclusive authority eligibility verification that, the Ninth Circuit contended, Arizona's only role was make [the Federal] [F]orm available applicants and accept and use for the registration voters. 677 F.3d 398 (emphasis added).  The language the statute not only does not prohibit additional documentation requirements, permits states require such identifying information necessary enable the appropriate State election official assess the eligibility the applicant . U.S.C.  1973gg-7(b)(1). 
 
 Besides express authorization for state develop and use form compliant with the statutes criteria (42 U.S.C.  1973gg-4(a)(2)), the NVRA also provides that each State shall establish procedures register vote elections for Federal office (2) mail application pursuant section 1973gg-4 this title, addition any other method voter registration provided for under State law, id.  1973gg-2(a) (emphasis added).  Although the NVRA requires that states accept and use the Federal Form, id.  1973gg-4(a)(2), the NVRA does not foreclose states from using other methods for registering voters, id.  1973gg-2(a), and allows states develop and use state specific forms, those forms fit within set criteria, id.  1973gg-4(a)(2). Therefore, Congress did not assume exclusive control the whole subject . Parte Siebold, 100 U.S. 371, 383 (1879) (emphasis the original).  
 
 Arizona plainly permitted require proof citizenship for federal voter registration because its expressly granted authority develop and use form complying with  1973gg-7(b) and may deny voter registration for federal elections for lack such proof.  See id. 392 ([W]e think clear that the clause the Constitution relating the regulation such elections contemplates such co-operation whenever Congress deems expedient interfere merely alter add existing regulations the State .). 
 
 II. Upheld, The Ninth Circuits Ruling    Would Impose Significant Burden   Arizona and Other States. 
 
 The Ninth Circuits conclusion would have the effect imposing significant new burden voter registration Arizona and other States.  For example, person Arizona that completes the  Federal Form, but lacks proof citizenship, would have allowed vote for federal officials but could not vote for State officials.  States that desire proof-of-citizenship requirement their State forms (as the Ninth Circuit seemed conclude allowed the NVRA), would required determine which election (federal, state, both) which residents are permitted vote.  This creates significant new burden States and confusing result that certainly not anticipated the NVRA.  
 
 The Ninth Circuit also failed give any weight the stated goal the NVRA protect the 
integrity the electoral process and enhance the participation eligible citizens voters elections for Federal office guiding purposes the statute. U.S.C.  1973gg(b) (emphasis added).  Proposition 200s proof-of-citizenship requirement fully accord with these important purposes.  Under sensible reading the statute the goal election integrity advanced allowing non-citizens vote. sum, the Ninth Circuits holding turns  1973gg-4(a)(1)s requirement that states accept and use the Federal Form. However,  1973gg-4(a)(2) also plainly allows state develop and use its own form complies with the standards set forth  1973gg-7(b). Because Proposition 200 plainly consistent with these standards, entirely harmonious with the NVRA. 
  
CONCLUSION 
 
For the foregoing reasons, Senator Pearce respectfully requests that this Court reverse the Ninth Circuits decision and hold that Proposition 200 not preempted federal law. 
 
Respectfully submitted, 
 
James Peterson 
  Counsel Record 
JUDICIAL WATCH, INC. 
425 Third Street, S.W., Suite 800 
Washington,  20024 
jpeterson@judicialwatch.org 
(202) 646-5172 
 
     Counsel for Amicus Curiae 
 
     December 14, 2012



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