FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARIA M. GONZALEZ,; LUCIANO
VALENCIA; THE INTER TRIBAL
COUNCIL OF ARIZONA, INC.;
ARIZONA ADVOCACY NETWORK;
STEVE M. GALLARDO; LEAGUE OF
UNITED LATIN AMERICAN CITIZENS
ARIZONA; LEAGUE OF WOMEN
VOTERS OF ARIZONA;
PEOPLE FOR THE AMERICAN WAY
FOUNDATION; HOPI TRIBE,
Plaintiffs,
and
BERNIE ABEYTIA; ARIZONA HISPANIC
COMMUNITY FORUM; CHICANOS POR
LA CAUSA; FRIENDLY HOUSE; JESUS
GONZALEZ; DEBBIE LOPEZ;
SOUTHWEST VOTER REGISTRATION
EDUCATION PROJECT; VALLE DEL
SOL; PROJECT VOTE,
Plaintiffs- Appellants,
4111
4112 GONZALEZ v. ARIZONA
v.
STATE OF ARIZONA; SHELLY BAKER,
La Paz County Recorder; BERTA
MANUZ, Greenlee County
Recorder; CANDACE OWENS,
Coconino County Recorder; LYNN
CONSTABLE, Yavapai County
Election Director; KELLY DASTRUP,
Navajo County Election Director;
LAURA DEAN-LYTLE, Pinal County
Recorder; JUDY DICKERSON,
Graham County Election Director;
DONNA HALE, La Paz County
Election Director; SUSAN
HIGHTOWER MARLAR, Yuma County
Recorder; GILBERTO HOYOS, Pinal
County Election Director;
LAURETTE JUSTMAN, Navajo County
Recorder; PATTY HANSEN,
Coconino County Election
Director; CHRISTINE RHODES,
Cochise County Recorder; LINDA
HAUGHT ORTEGA, Gila County
Recorder; DIXIE MUNDY, Gila
County Election Director; BRAD
NELSON, Pima County Election
Director; KAREN OSBORNE,
Maricopa County Election
Director;
GONZALEZ v. ARIZONA 4113
YVONNE PEARSON, Greenlee County No. 08-17094
Election Director; PENNY PEW, D.C. Nos.
Apache County Election Director; 2:06-cv-01268-ROS
HELEN PURCELL, Maricopa County 06-cv-01362-PCT-
Recorder; F. ANN RODRIGUEZ, Pima JAT
County Recorder, KEN BENNETT, 06-cv-01575-PHX-
Defendants-Appellees,
EHC
MARIA M. GONZALEZ; BERNIE
ABEYTIA; ARIZONA HISPANIC
COMMUNITY FORUM; CHICANOS POR
LA CAUSA; FRIENDLY HOUSE; JESUS
GONZALEZ; DEBBIE LOPEZ;
SOUTHWEST VOTER REGISTRATION
EDUCATION PROJECT; LUCIANO
VALENCIA; VALLE DEL SOL;
PEOPLE FOR THE AMERICAN WAY
FOUNDATION; PROJECT VOTE,
Plaintiffs,
and
4114 GONZALEZ v. ARIZONA
THE INTER TRIBAL COUNCIL OF
ARIZONA, INC.; ARIZONA ADVOCACY
NETWORK; STEVE M. GALLARDO;
LEAGUE OF UNITED LATIN AMERICAN
CITIZENS ARIZONA; LEAGUE OF
WOMEN VOTERS OF ARIZONA; HOPI
TRIBE,
Plaintiffs-Appellants,
v.
STATE OF ARIZONA; KEN BENNETT;
SHELLY BAKER, La Paz County
Recorder; BERTA MANUZ, Greenlee
County Recorder; CANDACE
OWENS, Coconino County
Recorder; PATTY HANSEN,
Coconino County Election
Director; KELLY DASTRUP, Navajo
County Election Director; LYNN
CONSTABLE, Yavapai County
Election Director; LAURA DEAN-
LYTLE, Pinal County Recorder;
JUDY DICKERSON, Graham County
Election Director; DONNA HALE,
La Paz County Election Director;
SUSAN HIGHTOWER MARLAR, Yuma
County Recorder; GILBERTO
HOYOS, Pinal County Election
Director;
GONZALEZ v. ARIZONA 4115
LAURETTE JUSTMAN, Navajo County
Recorder; CHRISTINE RHODES,
Cochise County Recorder; LINDA
HAUGHT ORTEGA, Gila County
Recorder; DIXIE MUNDY, Gila
County Election Director; BRAD
NELSON, Pima County Election No. 08-17115
Director; KAREN OSBORNE,
Maricopa County Election D.C. No.
2:06-cv-01268-ROS
Director; YVONNE PEARSON,
Greenlee County Election OPINION
Director; PENNY PEW, Apache
County Election Director; HELEN
PURCELL, Maricopa County
Recorder; F. ANN RODRIGUEZ, Pima
County Recorder,
Defendants-Appellees,
Appeals from the United States District Court
for the District of Arizona
Roslyn O. Silver, Chief District Judge, Presiding
Argued and Submitted
June 21, 2011—Pasadena, California
Filed April 17, 2012
Before: Alex Kozinski, Chief Judge, Harry Pregerson,
Pamela Ann Rymer, Susan P. Graber, Marsha S. Berzon,
Johnnie B. Rawlinson, Richard R. Clifton, Jay S. Bybee,
Sandra S. Ikuta, N. Randy Smith, and Mary H. Murguia,
Circuit Judges.1
1
Judge Rymer participated in oral argument and deliberations but
passed away before joining any opinion.
4116 GONZALEZ v. ARIZONA
Opinion by Judge Ikuta;
Concurrence by Chief Judge Kozinski;
Concurrence by Judge Berzon;
Partial Concurrence and Partial Dissent by Judge Pregerson;
Partial Concurrence and Partial Dissent by Judge Rawlinson
4120 GONZALEZ v. ARIZONA
COUNSEL
Nina Perales, Esq. (argued), Mexican American Legal
Defense and Educational Fund, San Antonio, Texas, for
plaintiffs-appellants Jesus Gonzalez, et al.
Jon M. Greenbaum, Esq. (argued), Robert A. Kengle, Law-
yers’ Committee for Civil Rights Under Law, Washington,
D.C., David J. Bodney, Esq., Steptoe & Johnson, LLP, Phoe-
nix, Arizona, David B. Rosenbaum, Esq., Thomas L. Hudson,
Esq., Osborn Maledon, P.A., Phoenix, Arizona, Joe P. Sparks,
Esq., The Sparks Law Firm, Scottsdale, Arizona, Daniel B.
Kohrman, Esq., AARP, Washington, D.C., for plaintiffs-
appellants The Inter Tribal Council of Arizona, et al.
Samuel R. Bagenstos (argued), DOJ, Washington, D.C., for
amicus curiae United States.
Thomas C. Horne (argued), Attorney General, Phoenix, Ari-
zona, Mary O’Grady, Solicitor General, Phoenix, Arizona, for
defendant-appellee Ken Bennett.
OPINION
IKUTA, Circuit Judge:
Proposition 200 requires prospective voters in Arizona to
provide proof of U.S. citizenship in order to register to vote,
GONZALEZ v. ARIZONA 4121
see Ariz. Rev. Stat. § 16-166(F) (the “registration provision”),
and requires registered voters to show identification to cast a
ballot at the polls, see Ariz. Rev. Stat. § 16-579(A) (the “poll-
ing place provision”). This appeal raises the questions
whether Proposition 200 violates § 2 of the Voting Rights Act
of 1965 (VRA), 42 U.S.C. § 1973, is unconstitutional under
the Fourteenth or Twenty-fourth Amendments to the Consti-
tution, or is void as inconsistent with the National Voter Reg-
istration Act of 1993 (NVRA), 42 U.S.C. §§ 1973gg et seq.
We uphold Proposition 200’s requirement that voters show
identification at the polling place, but conclude that the
NVRA supersedes Proposition 200’s registration provision as
that provision is applied to applicants using the National Mail
Voter Registration Form (the “Federal Form”) to register to
vote in federal elections.
I
On November 2, 2004, Arizona voters passed a state initia-
tive, Proposition 200, which (upon proclamation of the Gov-
ernor) enacted various revisions to the state’s election laws.
As explained in more detail below, Proposition 200’s registra-
tion provision amended Arizona’s voter registration proce-
dures to require the County Recorder to “reject any
application for registration that is not accompanied by satis-
factory evidence of United States citizenship.” Ariz. Rev.
Stat. § 16-166(F). Proposition 200’s polling place provision
amended Arizona’s election day procedures to require voters
to present specified forms of identification at the polls. See id.
§ 16-579(A).
Shortly after Proposition 200’s passage, a number of plain-
tiffs filed lawsuits against Arizona2 to enjoin these changes.
Two groups of plaintiffs are relevant to this appeal: the Gon-
2
We refer to the defendants collectively as “Arizona,” even though Ari-
zona county recorders were also named as individual defendants.
4122 GONZALEZ v. ARIZONA
zalez plaintiffs (Gonzalez) and the Inter Tribal Council of
Arizona plaintiffs (ITCA).3
The district court consolidated the various complaints.
After the district court denied the plaintiffs’ motion for a pre-
liminary injunction, Gonzalez and ITCA appealed. See Gon-
zalez v. Arizona (Gonzalez I), 485 F.3d 1041, 1046 (9th Cir.
2007). Because the briefing schedule for the appeal extended
beyond the 2006 election, Gonzalez and ITCA moved for an
emergency interlocutory injunction (which would prevent the
implementation of Proposition 200 pending the disposition of
the appeal of the district court’s denial of a preliminary
injunction), which we granted. See id. After Arizona peti-
tioned for certiorari, the Supreme Court vacated the emer-
gency injunction and remanded the case to this court for a
determination of the merits of the appeal. See Purcell v. Gon-
zalez, 549 U.S. 1, 5-6 (2006) (per curiam).
On remand, Gonzalez and ITCA pursued their claim for
preliminary injunctive relief only with respect to Proposition
200’s registration requirement. Gonzalez I, 485 F.3d at 1048.
The panel in Gonzalez I affirmed the district court’s denial of
the preliminary injunction, holding that Proposition 200’s reg-
istration provision was not an unconstitutional poll tax and
was not superseded by the NVRA. See id. at 1049, 1050-51.
On remand, the district court held that Proposition 200’s
polling place provision was not a poll tax under the Twenty-
fourth Amendment and its registration provision did not con-
flict with the NVRA, and granted summary judgment to Ari-
3
Jesus Gonzalez represented one group of plaintiffs, which consisted of
individual Arizona residents and organizational plaintiffs. The Inter Tribal
Council of Arizona, a non-profit organization of twenty Arizona tribes,
represented another group of plaintiffs, which included the Hopi Tribe,
Representative Steve Gallardo from the Arizona State House of Represen-
tatives, the League of Women Voters of Arizona, the League of United
Latin American Citizens, the Arizona Advocacy Network, and People For
the American Way Foundation.
GONZALEZ v. ARIZONA 4123
zona on these claims. After trial, the district court resolved all
other claims in favor of Arizona, holding that Proposition 200
did not violate § 2 of the VRA or the Equal Protection Clause
of the Fourteenth Amendment and did not constitute a poll tax
under the Fourteenth Amendment.
Gonzalez and ITCA appealed the district court’s rulings on
the NVRA and Twenty-fourth Amendment claims. In addi-
tion, ITCA challenged the court’s determination that Proposi-
tion 200 was not a poll tax under the Fourteenth Amendment,
and Gonzalez challenged the court’s determinations on the
Voting Rights Act and Equal Protection Clause claims. A
three-judge panel affirmed in part and reversed in part, hold-
ing that Proposition 200’s polling place provision did not vio-
late the VRA or the Fourteenth and Twenty-fourth
Amendments, but that Proposition 200’s registration provi-
sion was superseded by the NVRA. Gonzalez v. Arizona
(Gonzalez II), 624 F.3d 1162 (9th Cir. 2010). In deciding
Gonzalez and ITCA’s challenge to the registration provision,
the panel overruled the contrary holding of Gonzalez I on the
ground that an exception to the law of the case rule applied.4
4
Under the law of the case doctrine, a court will generally refuse to
reconsider an issue that has already been decided by the same court or a
higher court in the same case. See Jeffries v. Wood, 114 F.3d 1484,
1488-89 (9th Cir. 1997) (en banc). We have recognized exceptions to the
law of the case doctrine, however, where “(1) the decision is clearly erro-
neous and its enforcement would work a manifest injustice, (2) interven-
ing controlling authority makes reconsideration appropriate, or (3)
substantially different evidence was adduced at a subsequent trial.” Id. at
1489 (footnote omitted) (quoting Caldwell v. Unified Capital Corp. (In re
Rainbow Magazine, Inc.), 77 F.3d 278, 281 (9th Cir. 1996)) (internal quo-
tation marks omitted). Some of our cases indicated that a three-judge panel
could rely on these exceptions to overrule the law of an earlier published
opinion, so long as no subsequent panel had yet relied on it. See id. at
1492-93; see also Mendenhall v. NTSB, 213 F.3d 464, 469 n.3 (9th Cir.
2000); Tahoe-Sierra Pres. Council, Inc. v. Tahoe Reg’l Planning Agency,
216 F.3d 764, 786-88 (9th Cir. 2000).
We now hold that the exceptions to the law of the case doctrine are not
exceptions to our general “law of the circuit” rule, i.e., the rule that a pub-
4124 GONZALEZ v. ARIZONA
See id. at 1185-91. A majority of the active judges of the court
voted to rehear the case en banc.
II
We first consider Proposition 200’s registration provision.
See Ariz. Rev. Stat. § 16-166(F). Gonzalez and ITCA contend
that this provision is preempted by the NVRA under both the
Supremacy Clause and the Elections Clause of the U.S. Con-
stitution. In response, Arizona relies on the Supremacy
Clause’s “presumption against preemption,” see Medtronic,
Inc. v. Lohr, 518 U.S. 470, 485 (1996), to argue that the
NVRA neither expressly nor impliedly preempts state voter
registration laws. Before addressing the parties’ arguments,
we first consider whether the framework of the Elections
Clause or the Supremacy Clause properly governs this ques-
tion.
A
[1] The Elections Clause establishes a unique relationship
between the state and federal governments. It provides:
lished decision of this court constitutes binding authority which “must be
followed unless and until overruled by a body competent to do so,” Hart
v. Massanari, 266 F.3d 1155, 1170 (9th Cir. 2001). To the extent that our
prior cases suggested otherwise, see Jeffries, 114 F.3d at 1492-93; Men-
denhall, 213 F.3d at 469 n.3; Tahoe-Sierra Pres. Council, Inc., 216 F.3d
at 786-88, they are overruled. This determination, however, does not affect
other recognized exceptions to the law of the circuit rule. See Miller v.
Gammie, 335 F.3d 889, 900 (9th Cir. 2003) (en banc) (holding that where
“the relevant court of last resort” has “undercut the theory or reasoning
underlying the prior circuit precedent in such a way that the cases are
clearly irreconcilable,” then “a three-judge panel of this court and district
courts should consider themselves bound by the intervening higher author-
ity and reject the prior opinion of this court as having been effectively
overruled”); see also Nat’l Cable & Telecomms. Ass’n v. Brand X Internet
Servs., 545 U.S. 967, 982 (2005) (holding that a “court’s prior judicial
construction of a statute trumps an agency construction otherwise entitled
to Chevron deference only if the prior court decision holds that its con-
struction follows from the unambiguous terms of the statute and thus
leaves no room for agency discretion”).
GONZALEZ v. ARIZONA 4125
The Times, Places and Manner of holding Elections
for Senators and Representatives, shall be prescribed
in each State by the Legislature thereof; but the Con-
gress may at any time by Law make or alter such
Regulations, except as to the Places of chusing Sena-
tors.
U.S. Const. art. I, § 4, cl. 1. In a nutshell, state governments
are given the initial responsibility for regulating the mechan-
ics of federal elections, but Congress is given the authority to
“make or alter” the states’ regulations.
The history of the Elections Clause reveals the reasoning
behind its unusual delegation of power. Under the Articles of
Confederation, the states had full authority to maintain,
appoint, or recall congressional delegates.5 At the Philadel-
phia Convention, delegates expressed concern that, if left
unfettered, states could use this power to frustrate the creation
of the national government, see U.S. Term Limits, Inc. v.
Thornton, 514 U.S. 779, 808-09 (1995), most obviously by
neglecting to hold federal elections. The Framers decided that
Congress should be given the authority to oversee the states’
procedures related to national elections as a safeguard against
potential state abuse. See id.; see also The Federalist No. 59,
at 168 (Alexander Hamilton) (Ron P. Fairfield ed., 2d ed.
1981) (explaining that “[n]othing can be more evident, than
that an exclusive power of regulating elections for the
national government, in the hands of the State legislatures,
would leave the existence of the Union entirely at their
mercy”). Over the protest of some Southern delegates,6 the
5
See Articles of Confederation of 1781, art. V (“[D]elegates shall be
annually appointed in such manner as the legislature of each State shall
direct . . . with a power reserved to each state, to recall its delegates
. . . .”).
6
South Carolinian delegates Charles Pinckney and John Rutledge
moved to exclude the language giving Congress this supervisory power
over the states. 5 The Debates in the Several State Conventions, on the
4126 GONZALEZ v. ARIZONA
Framers approved language giving Congress power to “make
or alter” the states’ regulations. See 5 Elliot’s Debates 401-02
(statement of James Madison). As modified to give Congress
this supervisory power, this language became the Elections
Clause.7
[2] Thus, the Elections Clause empowers both the federal
and state governments to enact laws governing the mechanics
of federal elections. The clause gives states the default author-
ity to prescribe the “Times, Places and Manner” of conducting
federal elections. Nevertheless, because Congress “may at any
time by Law make or alter” the regulations passed by the
state, power over federal election procedures is ultimately
“committed to the exclusive control of Congress.” Colegrove
v. Green, 328 U.S. 549, 554 (1946).8 While Congress may not
Adoption of the Federal Constitution, as Recommended by the General
Convention at Philadelphia, in 1787. Together with the Journal of the
Federal Convention, Luther Martin’s Letter, Yates’s Minutes, Congressio-
nal Opinions, Virginia and Kentucky Resolutions of ’98-’99, and Other
Illustrations of the Constitution 401 (photo. reprint 1987) (Jonathan Elliot
ed., 2d ed. 1901) [hereinafter Elliot’s Debates]. “The states, they con-
tended, could and must be relied on” to regulate legislative appointments.
Id.; see also Vieth v. Jubelirer, 541 U.S. 267, 275-76 (2004).
7
Alexander Hamilton described the need for congressional oversight of
the states as follows:
[The Framers] have submitted the regulation of elections for the
federal government, in the first instance, to the local administra-
tions; which, in ordinary cases, and when no improper views pre-
vail, may be both more convenient and more satisfactory; but
they have reserved to the national authority a right to interpose,
whenever extraordinary circumstances might render that interpo-
sition necessary to its safety.
The Federalist No. 59, at 168.
8
The Court has generally construed Congress’s authority under the
Elections Clause expansively. See, e.g., United States v. Mosley, 238 U.S.
383, 386 (1915) (authority to enforce the right of an eligible voter to cast
ballot and have ballot counted); Ex Parte Coy, 127 U.S. 731, 753-54
GONZALEZ v. ARIZONA 4127
always choose to exercise this power, “[w]hen exercised, the
action of Congress, so far as it extends and conflicts with the
regulations of the State, necessarily supersedes them.” Ex
Parte Siebold, 100 U.S. 371, 384 (1879); see also Foster v.
Love, 522 U.S. 67, 69 (1997) (stating that the Elections
Clause “is a default provision; it invests the States with
responsibility for the mechanics of congressional elections,
but only so far as Congress declines to preempt state legisla-
tive choices” (citation omitted)). Moreover, we have held that
the Elections Clause requires states to implement Congress’s
superseding regulations without compensation from the fed-
eral government. See Voting Rights Coal. v. Wilson, 60 F.3d
1411, 1415 (9th Cir. 1995). Thus, unlike virtually all other
provisions of the Constitution, the Elections Clause gives
Congress the power to “conscript state agencies to carry out”
federal mandates. Id. In sum, a state’s role in the creation and
implementation of federal election procedures under the Elec-
tions Clause is to administer the elections through its own
procedures until Congress deems otherwise; if and when Con-
gress does so, the states are obligated to conform to and carry
out whatever procedures Congress requires. See Foster, 522
U.S. at 69.
As should be clear from this overview, the Elections Clause
operates quite differently from the Supremacy Clause. The
Supremacy Clause provides that the laws of the United States
“shall be the supreme Law of the Land . . . any Thing in the
Constitution or Laws of any State to the Contrary notwith-
standing.” U.S. Const. art. VI, cl. 2. Under our system of dual
sovereignty, courts deciding whether a particular state law is
preempted under the Supremacy Clause must strive to main-
(1888) (authority to regulate conduct at any election coinciding with fed-
eral contest); Ex parte Yarbrough (The Ku-Klux Cases), 110 U.S. 651, 662
(1884) (authority to make additional laws for free, pure, and safe exercise
of right to vote); Ex parte Clarke, 100 U.S. 399, 404 (1879) (authority to
punish state election officers for violation of state duties vis-a-vis congres-
sional elections).
4128 GONZALEZ v. ARIZONA
tain the “delicate balance” between the States and the Federal
Government, Gregory v. Ashcroft, 501 U.S. 452, 460 (1991);
see Medtronic, 518 U.S. at 485, especially when Congress is
regulating in an area “traditionally occupied by the States,”
United States v. Locke, 529 U.S. 89, 108 (2000) (internal quo-
tation marks omitted); see also Cipollone v. Liggett Grp., 505
U.S. 504, 516 (1992). The Supreme Court has crafted special
guidelines to assist courts in striking this balance. First, courts
applying the Supremacy Clause are to begin with a presump-
tion against preemption. E.g., Altria Grp. v. Good, 555 U.S.
70, 77 (2008); Medtronic, 518 U.S. at 485. This principle
applies because, as the Court has recently noted, “respect for
the States as independent sovereigns in our federal system
leads us to assume that Congress does not cavalierly pre-empt
state-law causes of action.” Wyeth v. Levine, 129 S. Ct. 1187,
1195 n.3 (2009) (internal quotation marks omitted). Second,
the Court has adopted a “plain statement rule,” holding that
a federal statute preempts a state law only when it is the “clear
and manifest” purpose of Congress to do so. Gregory, 501
U.S. at 461 (internal quotation marks omitted). Only where
the state and federal laws cannot be reconciled do courts hold
that Congress’s enactments must prevail. See, e.g., Altria, 555
U.S. at 76-77.
[3] In contrast to the Supremacy Clause, which addresses
preemption in areas within the states’ historic police powers,
the Elections Clause affects only an area in which the states
have no inherent or reserved power: the regulation of federal
elections. See U.S. Term Limits, 514 U.S. at 804-05. As the
Supreme Court has explained, because federal elections did
not exist prior to the formation of the federal government, the
states’ sole authority to regulate such elections “aris[es] from
the Constitution itself,” id. at 805. Because states have no
reserved authority over the domain of federal elections, courts
deciding issues raised under the Elections Clause need not be
concerned with preserving a “delicate balance” between com-
peting sovereigns. Instead, the Elections Clause, as a standa-
lone preemption provision, establishes its own balance. For
GONZALEZ v. ARIZONA 4129
this reason, the “presumption against preemption” and “plain
statement rule” that guide Supremacy Clause analysis are not
transferable to the Elections Clause context. See Harkless v.
Brunner, 545 F.3d 445, 454 (6th Cir. 2008) (declining to
apply Supremacy Clause preemption principles in analyzing
the preemptive effect of the NVRA). Indeed, the Supreme
Court has suggested as much. In Foster, the Supreme Court
upheld the Fifth Circuit’s determination that a state election
law was voided by a federal election law; however, instead of
adopting the Fifth Circuit’s Supremacy Clause analysis, the
Court analyzed the claim under the Elections Clause, without
ever mentioning a presumption against preemption or plain
statement rule. See Foster, 522 U.S. 67, aff’g 90 F.3d 1026
(5th Cir. 1996). In fact, our survey of Supreme Court opinions
deciding issues under the Elections Clause reveals no case
where the Court relied on or even discussed Supremacy
Clause principles. Because the Elections Clause empowered
Congress to enact the NVRA, see Wilson, 60 F.3d at 1413-14,
the preemption analysis under that Clause applies here.
B
The Supreme Court first explained the principles of Elec-
tions Clause preemption in Siebold, 100 U.S. 371. In that
case, the Court likened the relationship between laws passed
by state legislatures and those enacted by Congress under the
Elections Clause to “prior and subsequent enactments of the
same legislature.” Id. at 384. “The State laws which Congress
sees no occasion to alter, but which it allows to stand, are in
effect adopted by Congress.” Id. at 388. Just as a subsequent
legislature is not required to make an “entirely new set” of
laws when modifying those of a prior legislature, neither is
Congress required to wholly take over the regulation of fed-
eral election procedures when choosing to “make or alter”
certain of the states’ rules. Id. at 384. There is no “intrinsic
difficulty in such co-operation” between the state and national
legislatures because the two governments do not possess an
“equality of jurisdiction” with respect to federal elections. Id.
4130 GONZALEZ v. ARIZONA
at 392. In all instances, “the laws of the State, in so far as they
are inconsistent with the laws of Congress on the same sub-
ject, cease to have effect as laws.” Id. at 397.
Over a century later, the Supreme Court clarified what con-
stitutes a conflict under an Elections Clause analysis. See Fos-
ter, 522 U.S. 67. Foster considered whether a congressional
enactment superseded a Louisiana statute regulating the same
federal election procedure. Id. at 68-69. Specifically, federal
law set the date for congressional elections as the Tuesday
after the first Monday in November. Id. at 68. A Louisiana
statute established an open primary in October for the offices
of United States Senator and Representative. Id. at 70. Only
if the open primary failed to result in a majority candidate
would a run off election between the top two candidates be
held on Congress’s specified election day. Id. In response to
a challenge by Louisiana voters, the Court unanimously held
that the state and federal acts conflicted and thus that the fed-
eral statute superseded the Louisiana law. Id. at 74.
The Court rejected the state’s claim that its statute and the
federal enactment could be construed harmoniously. Id. at
72-73. Louisiana asserted that “the open primary system con-
cern[ed] only the ‘manner’ of electing federal officials, not
the ‘time’ at which the elections will take place.” Id. at 72.
The Court discarded the state’s “attempt to draw this time-
manner line” as “merely wordplay” and an “imaginative char-
acterization” of the statutes. Id. at 72-73. Building upon the
principles from Siebold, the Court declined to adopt a strained
interpretation of the statutes to reconcile a potential disagree-
ment.9 See id. Rather, the Court emphasized Congress’s ple-
9
The dissent’s claim that in Foster there was a “blatant conflict”
between the state and federal election laws, dis. op. at 4213, is incorrect.
Rather, the petitioners in Foster proffered a reading of the state and fed-
eral statutes that at least technically avoided a conflict. See Foster, 522
U.S. at 72 (arguing that “because Louisiana law provides for a ‘general
election’ on federal election day in those unusual instances when one is
GONZALEZ v. ARIZONA 4131
nary authority not only to supplant state rules but to conscript
states to carry out federal enactments under the Elections
Clause, and found it enough that, under a natural reading, the
state and federal enactments addressed the same procedures
and were in conflict. Id. Refusing to pare the statute “down
to the definitional bone,” the Court held that the state enact-
ment was void. Id. at 72, 74.
Reading Siebold and Foster together, we derive the follow-
ing approach for determining whether federal enactments
under the Elections Clause displace a state’s procedures for
conducting federal elections. First, as suggested in Siebold,
we consider the state and federal laws as if they comprise a
single system of federal election procedures. Siebold, 100
U.S. at 384. If the state law complements the congressional
procedural scheme, we treat it as if it were adopted by Con-
gress as part of that scheme. See id. If Congress addressed the
same subject as the state law, we consider whether the federal
act has superseded the state act, based on a natural reading of
the two laws and viewing the federal act as if it were a subse-
quent enactment by the same legislature. Foster, 522 U.S. at
74; see id. at 72-73. If the two statutes do not operate harmo-
niously in a single procedural scheme for federal voter regis-
tration, then Congress has exercised its power to “alter” the
state’s regulation, and that regulation is superseded.
C
Before applying this Elections Clause analysis here, we
must understand the scope and application of the federal and
needed, the open primary system concerns only the ‘manner’ of electing
federal officials, not the ‘time’ at which the elections will take place”).
The Court rejected this reading as “merely wordplay.” Id. The dissent pro-
vides a similarly strained reading of the NVRA and Proposition 200, see
dis. op. at 4203-04, 4206-07 which likewise falls short, see infra at
4138-43.
4132 GONZALEZ v. ARIZONA
state statutes at issue, namely the NVRA and Proposition
200’s registration provision.
The NVRA prescribes three methods for registering voters
for federal elections. 42 U.S.C. § 1973gg-2(a). These methods
are: (1) “by application made simultaneously with an applica-
tion for a motor vehicle driver’s license,” id. § 1973gg-2(a)(1);10
(2) “by mail application” using the Federal Form prescribed
by the Election Assistance Commission (EAC),11 id.
§§ 1973gg-2(a)(2), 1973gg-4; and (3) “by application in per-
son” at sites designated in accordance with state law or state
voter registration agencies, id. § 1973gg-2(a)(3). States must
“establish procedures to register” voters through all three
methods “notwithstanding any other Federal or State law” and
“in addition to any other method of voter registration pro-
vided for under State law.” Id. § 1973gg-2(a).12
In connection with prescribing these three methods of voter
registration, the NVRA mandates the creation of two new
voter registration applications. First, the NVRA requires
states to create a combined driver’s license and voter registra-
tion application form (the “Motor Voter Form”) pursuant to
certain criteria set out in the statute. See id. § 1973gg-3. The
10
Under this method, any application for a driver’s license submitted to
a state motor vehicle authority “shall serve as an application for voter reg-
istration with respect to elections for Federal office unless the applicant
fails to sign the voter registration application.” § 1973gg-3(a)(1). This pro-
vision earned the statute its informal name: the “Motor Voter Law.”
11
The responsibilities of the EAC were formerly held by the Federal
Election Commission (FEC). When Congress passed the Help America
Vote Act or 2002 (HAVA), Pub. L. No. 107-252, 116 Stat. 1666, it created
the EAC, 42 U.S.C. § 15321, which eventually absorbed the FEC’s duties
under the NVRA, see 42 U.S.C. § 15532. In this opinion, we refer to both
entities as the EAC.
12
States that do not require registration to vote or allow election-day
registration at polling places are exempt from the NVRA. See § 1973gg-
2(b). These states are Idaho, Minnesota, New Hampshire, North Dakota,
Wisconsin, and Wyoming. See 75 Fed. Reg. 47,729-01, 47,730 (Aug. 9,
2010).
GONZALEZ v. ARIZONA 4133
NVRA also requires the EAC to create the Federal Form, a
nationally uniform voter application that applicants can use to
register by mail and in person at designated locations. See id.
§§ 1973gg-4, 1973gg-7(a)(2). In addition, states may (but are
not required to) create their own state mail voter registration
forms for federal elections (the “State Form”), so long as
these forms meet certain criteria in the NVRA. See id.
§ 1973gg-4(a)(2).
The NVRA sets out a broad framework for the contents of
the Federal Form, including specifying certain items that must
be included on the form, along with other items that cannot
be. See id. § 1973gg-7(b). Among other things, id. § 1973gg-
7(b) provides that the Federal Form “may require only such
identifying information . . . as is necessary to enable the
appropriate State election official to assess the eligibility of
the applicant and to administer voter registration and other
parts of the election process.” Id. § 1973gg-7(b)(1). Further,
the Federal Form must include a statement specifying “each
eligibility requirement (including citizenship)” for voting
along with an “attestation that the applicant meets each such
requirement,” id. § 1973gg-7(b)(2)(A)-(B), and must require
“the signature of the applicant, under penalty of perjury,” id.
§ 1973gg-7(b)(2)(C). In addition, the NVRA provides that the
Federal Form cannot include “any requirement for notariza-
tion or other formal authentication,” id. § 1973gg-7(b)(3).13
13
In full, section 1973-gg7(b) states that the Federal Form
(1) may require only such identifying information (including the
signature of the applicant) and other information (including data
relating to previous registration by the applicant), as is necessary
to enable the appropriate State election official to assess the eligi-
bility of the applicant and to administer voter registration and
other parts of the election process;
(2) shall include a statement that—
(A) specifies each eligibility requirement (including citizen-
ship);
4134 GONZALEZ v. ARIZONA
The NVRA directs the EAC, in consultation with “the chief
election officers of the States,” to develop the Federal Form
in a manner consistent with these broad guidelines. Id.
§ 1973gg-7(a)(2). The EAC discharged this statutory require-
ment by designing a Federal Form that met the criteria set
forth in section 1973gg-7(b). See 59 Fed. Reg. 32,311-01
(June 23, 1994), codified at 11 C.F.R., pt. 9428. As designed
by the EAC (and subsequently modified by HAVA, 42 U.S.C.
§§ 15301 et seq.), the Federal Form is a postcard.14 See 11
C.F.R. § 9428.5. The top of the form asks “Are you a citizen
of the United States of America?” and “Will you be 18 years
old on or before election day?” with boxes for the applicant
to check yes or no.15 Applicants who check “no” to either of
these questions are instructed not to complete the form. If the
(B) contains an attestation that the applicant meets each such
requirement; and
(C) requires the signature of the applicant, under penalty of
perjury;
(3) may not include any requirement for notarization or other for-
mal authentication; and
(4) shall include, in print that is identical to that used in the attes-
tation portion of the application—
(i) the voter eligibility requirements and penalties for false
applications set forth in § 1973gg-6(a)(5);
(ii) a statement that, if an applicant declines to register to
vote, the fact that the applicant has declined to register will
remain confidential and will be used only for voter registra-
tion purposes; and
(iii) a statement that if an applicant does register to vote, the
office at which the applicant submits a voter registration
application will remain confidential and will be used only for
voter registration purposes.
Id. § 1973gg-7(b).
14
The Federal Form is set forth in Appendix A.
15
These two questions and the associated instructions were added to the
Federal Form by HAVA. 42 U.S.C. § 15483(b)(4)(A)(i)-(ii).
GONZALEZ v. ARIZONA 4135
applicant checks “yes” to both questions, the form then
requests the applicant’s name, address, date of birth, tele-
phone number (optional), choice of party,16 race or ethnic
group,17 and “ID number.”18 It also requires the applicant to
attest (with a signature or mark) that he or she is a U.S. citi-
zen, meets his or her state’s voting eligibility requirements,
and has provided information that is “true to the best of [his
or her] knowledge under penalty of perjury.” No other proof
of U.S. citizenship is required. The Federal Form postcard
may be dropped into the mail or delivered in person to one of
the designated offices.
As noted above, in addition to mandating the creation and
use of the Federal Form, the NVRA allows states to develop
and use an optional State Form for registering voters for fed-
eral elections. See 42 U.S.C. § 1973gg-4(a)(2). If a state
chooses to create a State Form, that form must conform to the
broad framework for the contents of the Federal Form set
forth in section 1973gg-7(b). See id. Arizona chose to create
a State Form19 that is similar to the Federal Form but requires
that first-time voters and persons who have moved between
Arizona counties “also include proof of citizenship or the
16
“Choice of party” is required in some states for voters who wish to
participate in closed primaries. It is not required to register to vote in gen-
eral elections. See 59 Fed. Reg. at 32,314.
17
This box was included on the Federal Form to assist certain states in
their data collection efforts pursuant to § 5 of the VRA. Id. at 32,315-16.
18
The “ID number” is used for “election administration purposes.” 11
C.F.R. § 9428.4(a)(6), see 59 Fed. Reg. at 32,314 (explaining that ID num-
bers “are not necessary for determining the eligibility of the applicant,”
but rather are for assisting the states in administering the registration pro-
cess). The Federal Form’s instruction booklet provides state-specific
instructions for the “ID number” box: for Arizona, applicants must pro-
vide a driver’s license, non-operating identification license number, the
last four digits of a social security number, or write “None.” These instruc-
tions are consistent with Arizona’s election administration obligations
under HAVA. See infra at pp. 4144-45.
19
The Arizona State Form is set forth in Appendix B.
4136 GONZALEZ v. ARIZONA
form will be rejected.” According to the State Form instruc-
tions, an applicant can satisfy this proof of citizenship require-
ment by writing in a designated box on the State Form the
number of the applicant’s Arizona driver’s license or nonop-
erating identification license issued after October 1, 1996,20
alien registration number, or specified tribal identification
number (as relevant). If the applicant lacks such a number, the
applicant must include a photocopy of one of the acceptable
documents listed on the State Form (such as a birth certificate,
U.S. passport, tribal document, or the like) along with the
form itself.
[4] While the NVRA permits states to use their own State
Forms to register voters for federal elections, the NVRA still
requires every state to “accept and use” the Federal Form
developed by the EAC. See id. § 1973gg-4(a)(2) (“In addition
to accepting and using [the Federal Form], a State may
develop and use a mail voter registration form that meets all
of the criteria stated in section 1973gg-7(b) of this title for the
registration of voters in elections for Federal office.” (empha-
sis added)). In this way, the NVRA guarantees that an appli-
cant in any state seeking to register to vote in federal elections
may do so using the Federal Form.
D
Having reviewed the relevant provisions of the NVRA, we
now turn to Proposition 200’s registration provision, which
states: “The county recorder shall reject any application for
registration that is not accompanied by satisfactory evidence
of United States citizenship.” Ariz. Rev. Stat. § 16-166(F).
The statute defines satisfactory evidence of U.S. citizenship to
include the number of the applicant’s driver’s license or non-
operating identification license, certain numbers associated
20
Arizona started requiring applicants to provide documentation of their
lawful status as U.S. residents as a condition of receiving a driver’s license
or non-operating identification license after October 1, 1996.
GONZALEZ v. ARIZONA 4137
with Native American tribal status, the number of a certificate
of naturalization (or the in-person presentation of naturaliza-
tion documents), or a legible photocopy of a U.S. birth certifi-
cate or passport.21 See id.
By its terms, this proof of citizenship requirement applies
to the Federal Form as well as to Arizona’s State Form.22 In
21
Section 16-166(F) provides the following list of approved identifica-
tion documents:
1. The number of the applicant’s driver license or nonoperating
identification license issued after October 1, 1996 by the depart-
ment of transportation or the equivalent governmental agency of
another state within the United States if the agency indicates on
the applicant’s driver license or nonoperating identification
license that the person has provided satisfactory proof of United
States citizenship.
2. A legible photocopy of the applicant’s birth certificate that ver-
ifies citizenship to the satisfaction of the county recorder.
3. A legible photocopy of pertinent pages of the applicant’s
United States passport identifying the applicant and the appli-
cant’s passport number or presentation to the county recorder of
the applicant’s United States passport.
4. A presentation to the county recorder of the applicant’s United
States naturalization documents or the number of the certificate
of naturalization. If only the number of the certificate of natural-
ization is provided, the applicant shall not be included in the reg-
istration rolls until the number of the certificate of naturalization
is verified with the United States immigration and naturalization
service by the county recorder.
5. Other documents or methods of proof that are established pur-
suant to the immigration reform and control act of 1986.
6. The applicant’s bureau of Indian affairs card number, tribal
treaty card number or tribal enrollment number.
22
Proposition 200 also amended state law to require Arizona’s State
Form to “contain . . . [a] statement that the applicant shall submit evidence
of United States citizenship with the application and that the registrar shall
reject the application if no evidence of citizenship is attached.” Ariz. Rev.
Stat. § 16-152(A)(23). Because this provision does not affect the Federal
Form, we do not consider it here.
4138 GONZALEZ v. ARIZONA
other words, Proposition 200’s registration provision directs
Arizona county recorders to reject every Federal Form that is
submitted without the specified evidence of citizenship.
According to the Arizona Election Procedures Manual, which
has the force and effect of law, see Ariz. Rev. Stat. § 16-452,
if a rejected applicant wants to make a second attempt to pro-
vide evidence of citizenship, he or she must submit an entirely
new voter registration form in order to do so.23
E
We now turn to Gonzalez and ITCA’s contention that the
NVRA’s requirement that states “accept and use” the Federal
Form supersedes Proposition 200’s registration provision as
applied to applicants using the Federal Form.24
[5] In assessing this argument, we apply the Elections
Clause framework we derived from Siebold and Foster and
consider the NVRA and Proposition 200’s registration provi-
sion as if they comprise a single system of federal election
procedures. With respect to mail voter registration, the NVRA
provides that “[e]ach State shall accept and use” the Federal
Form “for the registration of voters in elections for Federal
office.” 42 U.S.C. § 1973gg-4(a)(1). By contrast, Proposition
200’s registration provision directs county recorders to “reject
any application for registration that is not accompanied by
satisfactory evidence of United States citizenship,” as defined
23
The manual instructs county recorders:
If [a voter registration] form is not accompanied by proper proof
of citizenship, the voter registration form is not valid and either
will not be entered into the system or if it was entered into the
system, the record shall be canceled. If the registrant subse-
quently provides proof of citizenship, it must be accompanied by
a new voter registration form and a new registration date.
Arizona Secretary of State Elections Procedures Manual (Oct. 2007).
24
Gonzalez and ITCA do not challenge Proposition 200’s registration
provision as applied to Arizona’s State Form.
GONZALEZ v. ARIZONA 4139
by Arizona law. Ariz. Rev. Stat. § 16-166(F). When read
together, the federal and state enactments treat the same sub-
ject matter, namely, the procedure for registering by mail to
vote in federal elections using the Federal Form, but they do
not operate harmoniously. In fact, these procedures are seri-
ously out of tune with each other in several ways.
First, the NVRA requires a county recorder to accept and
use the Federal Form to register voters for federal elections,
whereas the registration provision requires the same county
recorder to reject the Federal Form as insufficient for voter
registration if the form does not include proof of U.S. citizen-
ship. Arizona attempts to harmonize these procedures, argu-
ing that because the county recorder will accept the Federal
Form for voter registration so long as it includes satisfactory
evidence of citizenship, the county recorder is in fact comply-
ing with the NVRA’s mandate to “accept and use” the Federal
Form, per 42 U.S.C. § 1973gg-4(a)(1). Rejection of the Fed-
eral Form in certain circumstances, Arizona argues, does not
in itself mean that the state is failing to accept and use the
form. Indeed, Arizona asserts, Congress must have contem-
plated that some applicants using the Federal Form would be
rejected, because the NVRA directs states to notify “each
applicant of the disposition of [his or her] application.” Id.
§ 1973gg-6(a)(2).
[6] We disagree. Although Arizona has offered a creative
interpretation of the state and federal statutes in an effort to
avoid a direct conflict, we do not strain to reconcile a state’s
federal election regulations with those of Congress, but con-
sider whether the state and federal procedures operate harmo-
niously when read together naturally. See Foster, 522 U.S. at
72-74; Siebold, 100 U.S. at 384. Here, under a natural reading
of the NVRA, Arizona’s rejection of every Federal Form sub-
mitted without proof of citizenship does not constitute “ac-
cepting and using” the Federal Form. Arizona cannot cast
doubt on this conclusion by pointing out that the NVRA
allows states to reject applicants who fail to demonstrate their
4140 GONZALEZ v. ARIZONA
eligibility pursuant to the Federal Form. Congress clearly
anticipated that states would reject applicants whose
responses to the Federal Form indicate they are too young to
vote, do not live within the state, or have not attested to being
U.S. citizens. Indeed, the NVRA instructs the EAC to request
information on the Federal Form for the precise purpose of
“enabl[ing] the appropriate State election official to assess the
eligibility of the applicant.” 42 U.S.C. § 1973gg-7(b)(1).
Thus, a state that assesses an applicant’s eligibility based on
the information requested on the Federal Form is “accepting
and using” the form in exactly the way it was meant to be
used. In contrast, Proposition 200’s registration provision
directs county recorders to assess an applicant’s eligibility
based on proof of citizenship information that is not requested
on the Federal Form, and to reject all Federal Forms that are
submitted without such proof. Rejecting the Federal Form
because the applicant failed to include information that is not
required by that form is contrary to the form’s intended use
and purpose.
The dissent likewise attempts to justify Arizona’s rejection
of the Federal Form, but rests its arguments almost exclu-
sively on the fact that § 1973gg-4(a)(2) allows states to
develop and use a State Form, which may include require-
ments that are not included in the Federal Form. See dis. op
at 4200-03, 4204-06. According to the dissent, because states
may impose additional proof-of-citizenship requirements on
applicants using the State Form, it necessarily follows that
states may impose the same proof-of-citizenship requirements
on applicants using the Federal Form; that is, that they may
reject Federal Forms that do not include the additional proof
of citizenship. See dis. op. at 4203-06. But there is no logical
connection between the dissent’s premise and its conclusion,
which is contrary to the text of the statute. The NVRA clearly
requires states to accept and use the Federal Form (as
designed by the EAC) “[i]n addition to” the State Form.
GONZALEZ v. ARIZONA 4141
The NVRA’s State Form provision, § 1973gg-4(a)(2),
merely gives a state more options. Congress could have
required all states to use only the Federal Form, as designed
by the EAC, for federal elections. If Congress had done so,
then states could not use their state registration forms to regis-
ter applicants for federal elections. Instead, Congress allowed
States to use their state registration forms to register appli-
cants for both state and federal elections (provided the state
form complies with § 1973gg-7(b)).25 But states cannot reject
applicants who register for federal elections who use the Fed-
eral Form. There is nothing illogical or inconsistent about
requiring states to accept the federal registration form in addi-
tion to their own state form.
In order to avoid the clear import of the NVRA’s text, the
dissent argues that the Federal Form merely establishes the
default minimum or baseline registration requirements. See
dis. op. at 4203-04, 4209. In effect, the dissent wants to
replace the words “in addition to” with the words “instead
of,” so that “a State may develop and use a mail voter regis-
tration form that meets all of the criteria stated in section
1973gg-7(b) of this title” instead of “accepting and using” the
Federal Form. We have no authority to rewrite the statute,
however, and reject the dissent’s interpretation as being
inconsistent with the plain language. See id. (“In addition to
accepting and using [the Federal Form], a State may develop
and use a mail voter registration form that meets all of the
criteria stated in section 1973gg-7(b) of this title for the regis-
tration of voters in elections for Federal office.” (emphasis
added)).
25
The dissent therefore has it exactly backwards in asserting that, under
our interpretation of § 1973gg-4(a)(2), states may not use their state regis-
tration forms to register “voters in elections for Federal office.” Dis. op.
at 4208. States may use their state registration forms to register voters in
elections for federal office; they simply may not require registrants to use
the State Form (or the equivalent of the State Form, namely, the Federal
Form altered to include additional state requirements).
4142 GONZALEZ v. ARIZONA
[7] Second, Proposition 200’s registration provision
clashes with the NVRA’s delegation of authority to the EAC
(not the states) to determine the contents of the Federal Form.
See id. § 1973gg-7(a)(2). While states may suggest changes to
the Federal Form, the EAC has the ultimate authority to adopt
or reject those suggestions. See id. § 1973gg-7(a). Here the
EAC sent Arizona a letter rejecting its proposal to modify the
Federal Form to require applicants to present documentary
proof of citizenship in order to register, see infra p. 4148 n.29,
but Arizona nevertheless proceeded to impose this additional
requirement on applicants using the Federal Form. Arizona’s
insistence on engrafting an additional requirement on the Fed-
eral Form, even in the face of the EAC’s rejection of its pro-
posal, accentuates the conflict between the state and federal
procedures.26
Arizona attempts to minimize the clash between the NVRA
and Proposition 200 by noting that a proof of citizenship
requirement is consistent with the broad framework set out by
Congress in section 1973gg-7(b); specifically, Arizona notes
that the NVRA permits the Federal Form to seek such infor-
mation as is necessary to “assess the eligibility of the appli-
cant,” id. § 1973gg-7(b)(1), and does not expressly preclude
a requirement that applicants provide proof of citizenship.
Further, Arizona asserts that although Congress provided that
26
Arizona argues that McKay v. Thompson, 226 F.3d 752, 755-56 (6th
Cir. 2000), supports its conclusion that states may add requirements to the
Federal Form, so long as the NVRA does not expressly forbid those
requirements. Arizona is misreading McKay. In that case, the court
rejected a prospective voter’s objection to Tennessee’s practice of requir-
ing a full social security number as a precondition to successful registra-
tion, see id. at 754, stating that “[t]he NVRA does not specifically forbid
use of social security numbers.” Id. at 756. But this holding does not help
Arizona because the Federal Form allows states to instruct applicants to
provide their full social security numbers in the “ID number” box on the
Federal Form (and Tennessee’s instructions do so). See supra p. 4135 &
n.18. McKay therefore does not support the proposition that a state may
condition registration on an applicant’s provision of information that is not
requested on the Federal Form.
GONZALEZ v. ARIZONA 4143
the mail voter registration form “may not include any require-
ment for notarization or other formal authentication,” id.
§ 1973gg-7(b)(3), Arizona’s demand for proof of citizenship
does not amount to such a requirement. This argument misses
the point. Even assuming, without deciding, that Arizona is
correct in its interpretation of section 1973gg-7(b), this would
mean only that the NVRA allows Arizona to include a proof
of citizenship requirement on its State Form. See id.
§ 1973gg-4(a)(2) (allowing a state to “develop and use a mail
voter registration form that meets all of the criteria stated in
section 1973gg-7(b)”). It would not mean that Arizona has
authority to add this requirement to the Federal Form. Con-
gress entrusted that decision to the EAC. Once the EAC deter-
mined the contents of the Federal Form, Arizona’s only role
was to make that form available to applicants and to “accept
and use” it for the registration of voters.
[8] Third, Proposition 200’s registration provision is dis-
cordant with the NVRA’s goal of streamlining the registration
process. See, e.g., Nat’l Coal. for Students with Disabilities
Educ. & Legal Def. Fund v. Allen, 152 F.3d 283, 285 (4th Cir.
1998) (“Congress passed the NVRA . . . to make it easier to
register to vote . . . .”); ACORN v. Miller, 129 F.3d 833, 835
(6th Cir. 1997) (“In an attempt to reinforce the right of quali-
fied citizens to vote by reducing the restrictive nature of voter
registration requirements, Congress passed the [NVRA].”).
While the EAC chose to design the Federal Form as a post-
card, which could be easily filled out and mailed on its own,
Proposition 200’s registration provision makes the Federal
Form much more difficult to use. For example, nothing on the
face of the Federal Form or in the state-specific instructions
for Arizona indicates that some applicants may need to pro-
vide a full social security number, a tribal identification num-
ber, or an alien registration number, as Proposition 200
requires.27 Nor does the Federal Form instruct that additional
27
Because the Federal Form can be used as a mail-in postcard, the dis-
sent’s credit card analogy, see dis. op. at 4204, is not on point. A con-
4144 GONZALEZ v. ARIZONA
documents, such as birth certificates or passports, must be
provided by some applicants. Even if an applicant were aware
of Arizona’s requirement to provide documentary proof of cit-
izenship with the Federal Form, the applicant would have to
locate the required document, photocopy it, and enclose the
photocopy with the form in an envelope for mailing. In short,
much of the value of the Federal Form in removing obstacles
to the voter registration process is lost under Proposition
200’s registration provision.
Notwithstanding these concerns, Arizona asserts that Prop-
osition 200’s registration provision imposes little additional
burden on applicants, because only a small minority of appli-
cants lack a driver’s license number, tribal identification num-
ber, or alien registration number, all of which could suffice to
show citizenship and can easily be written on the Federal
Form. For this reason, Arizona contends, its proof of citizen-
ship requirement is not excessively burdensome under the
standard set forth in Crawford v. Marion County Election
Board, 553 U.S. 181, 199-200 (2008) (Stevens, J., announc-
ing the judgment of the Court). This argument misses the
mark. The goal of the NVRA was to streamline the registra-
tion process for all applicants; the fact that Proposition 200’s
registration provision only partially undermines this goal does
not make it harmonious with the NVRA. Nor does Crawford
provide support for Arizona’s argument. In Crawford, the
Court considered whether a polling place requirement
imposed a substantial burden on the right to vote, in violation
of the Fourteenth Amendment. See id. at 187. Even if Arizona
is correct that Proposition 200’s registration provision does
sumer would rightly cry foul if a merchant claimed it would “accept and
use” mailed-in credit card information for a purchase, but then refused to
complete the transaction because the consumer failed to include additional
information that the merchant had not requested. By the same token, the
Federal Form does not request documentary proof of citizenship. Because
a state must “accept and use” this form it cannot reject it merely because
an applicant has mailed it in without including information that is not
expressly required.
GONZALEZ v. ARIZONA 4145
not impose such a burden, this conclusion sheds no light on
the question before us here: whether the registration provision
is displaced by the NVRA under an Elections Clause analysis.
F
Because on its face the NVRA does not give states room
to add their own requirements to the Federal Form, Arizona
suggests that Congress’s subsequent enactment of HAVA per-
mits us to reinterpret the NVRA to allow states to impose
additional requirements on applicants for voter registration.
Again, we disagree, because by its terms HAVA precludes
such an interpretation.
Congress enacted HAVA in response to the 2000 Presiden-
tial election and the ensuing controversial Florida recount. See
Fla. State Conference of NAACP v. Browning, 522 F.3d 1153,
1155 (11th Cir. 2008). For the most part, the NVRA and
HAVA operate in separate spheres: the NVRA regulates voter
registration, whereas HAVA is concerned with updating elec-
tion technologies and other election-day issues at polling
places. However, a handful of provisions in HAVA relate to
the voter registration process, primarily by creating mecha-
nisms through which states can ensure that the person who
appears to cast a ballot at the polls is the same person who
registered to vote. Relevant here, HAVA requires states to
obtain (or assign) unique identification numbers for all regis-
tered voters: each applicant must provide his or her driver’s
license number or the last four digits of his or her social
security number on the voter registration form, or if the appli-
cant lacks such a number, the state must assign the applicant
a number “which will serve to identify the applicant for voter
registration purposes.” 42 U.S.C. § 15483(a)(5)(A)(i)-(ii). In
addition, states are to take steps to verify that the applicant’s
claimed identity matches the identification number he or she
provided. See id. § 15483(a)(5)(A)(iii) (requiring states to
“determine whether the [identification] information provided
4146 GONZALEZ v. ARIZONA
by an individual is sufficient to meet the requirements” of
HAVA); see also Crawford, 553 U.S. at 192.
HAVA also includes language limiting its scope. It clarifies
that “[t]he requirements established by [HAVA] are minimum
requirements and nothing in [HAVA] shall be construed to
prevent a State from establishing election technology and
administration requirements that are more strict than the
requirements established under [HAVA] so long as such State
requirements are not inconsistent with the Federal require-
ments under [HAVA] or any law described in section 15545
of this title.” Id. § 15484. Section 15545 is HAVA’s savings
clause: it provides that except for the changes to the NVRA
specified in HAVA, “nothing in this Act may be construed to
authorize or require conduct prohibited under [a number of
federal laws, including the NVRA], or to supersede, restrict,
or limit the application of [those federal laws].” Id.
§ 15545(a).
Arizona argues that HAVA gives it the authority to impose
additional requirements on applicants using the Federal Form
for two reasons. First, Arizona contends that because HAVA
directs states to verify the accuracy of the driver’s license or
social security numbers provided on the Federal Form, see id.
§ 15483(a)(5)(A)(iii), Arizona must likewise have the author-
ity to verify the accuracy of other information on the Federal
Form, including an applicant’s claim of citizenship. Second,
Arizona asserts that because HAVA establishes only “mini-
mum requirements,” and authorizes states to develop “elec-
tion technology and administration requirements that are more
strict than [HAVA’s] requirements,” id. § 15484, HAVA
gives states a green light to impose stricter requirements on
voter registration.
Both of these arguments fail in light of HAVA’s savings
clause, which makes clear that Congress intended to preserve
the NVRA except as to the specific changes it enacted in
HAVA. While HAVA made a handful of changes to the
GONZALEZ v. ARIZONA 4147
NVRA, it did not add a proof of citizenship requirement to the
Federal Form and did not authorize states to do so. For the
reasons explained above, an interpretation of HAVA that
allows states to override the EAC’s authority in designing the
Federal Form would “supersede, restrict, or limit the applica-
tion of” the NVRA. Id. § 15545(a). Because the savings
clause precludes such an interpretation, we decline to adopt
one. Therefore, HAVA does not provide Arizona the authori-
zation it seeks.
G
We recognize Arizona’s concern about fraudulent voter
registration. Nevertheless, the Elections Clause gives Con-
gress the last word on how this concern will be addressed in
the context of federal elections. As is evidenced by one of the
four articulated purposes of the NVRA, which is “to protect
the integrity of the electoral process,” id. § 1973gg(b)(3),
Congress was well aware of the problem of voter fraud when
it passed the act and provided for numerous fraud protections
in the NVRA.28
With respect to the Federal Form, Congress delegated to
the EAC the decision of how to balance the need “to establish
procedures that will increase the number of eligible citizens
who register to vote in elections for Federal office” and the
28
These safeguards include the NVRA’s requirement that the Federal
Form, the State Forms, and the Motor Voter Forms contain an attestation
clause that sets out the requirements for voter eligibility. Id. §§ 1973gg-
3(c)(2)(C)(i)-(ii), 1973gg- 7(b)(2)(A)-(B). Applicants are required to sign
these forms under penalty of perjury, id. §§ 1973gg-3(c)(2)(C)(iii),
1973gg-7(b)(2)(C), and persons who knowingly and willfully engage in
fraudulent registration practices are subject to criminal penalties, id.
§ 1973gg-10(2). In addition, the NVRA allows states to require first-time
voters who register by mail to vote in person at the polling place, where
the voter’s identity can be confirmed. See id. § 1973gg-4(c). Finally, sec-
tion 1973gg-6 requires states to give notice to applicants of the disposition
of their applications, which states may use as a means to detect fraudulent
registrations. See id. § 1973gg-6(a)(2).
4148 GONZALEZ v. ARIZONA
need to protect “the integrity of the electoral process,” id.
§ 1973gg(b)(1), (3). The EAC struck this balance by requiring
applicants to attest to their citizenship under penalty of per-
jury, but not requiring other proof of citizenship. See 59 Fed.
Reg. at 32,316 (“The issue of U.S. citizenship is addressed
within the oath required by the Act and signed by the appli-
cant under penalty of perjury. To further emphasize this pre-
requisite to the applicant, the words ‘For U.S. Citizens Only’
will appear in prominent type on the front cover of the
national mail voter registration form.”). Though Arizona has
eloquently expressed its reasons for striking the balance dif-
ferently, the federal determination controls in this context. See
ACORN v. Edgar, 56 F.3d 791, 795-96 (7th Cir. 1995) (reject-
ing Illinois’s argument that because the “motor voter” compo-
nent of the NVRA “opens the door to voter fraud,” the state
was entitled to refuse to comply with the law).
[9] In sum, the NVRA and Proposition 200’s registration
provision, when interpreted naturally, do not operate harmoni-
ously as a single procedural scheme for the registration of vot-
ers for federal elections. Therefore, under Congress’s
expansive Elections Clause power, we must hold that the reg-
istration provision, when applied to the Federal Form, is pre-
empted by the NVRA.29
29
We reach our conclusion based on the language and structure of the
statute, and therefore do not rely on the EAC’s interpretation of the NVRA
or the NVRA’s legislative history. While ITCA maintains that the EAC’s
view is entitled to some level of deference under Skidmore v. Swift & Co.,
323 U.S. 134 (1944), Arizona argues that Congress did not delegate any
authority to the EAC to interpret the NVRA, see 42 U.S.C. § 15329, and
thus deference is not appropriate. We need not resolve this dispute, but
merely note that both the EAC’s view and the NVRA’s legislative history
are consistent with our holding. In its letter to Arizona, the EAC construed
the NVRA as not permitting states to “condition acceptance of the Federal
Form upon receipt of additional proof.” With respect to the legislative his-
tory, the NVRA’s Conference Report, which we have held is the most
authoritative and reliable legislative material, see, e.g., Nw. Forest Res.
Council v. Glickman, 82 F.3d 825, 835 (9th Cir. 1996), shows that Con-
GONZALEZ v. ARIZONA 4149
III
Because we hold that the NVRA supersedes Proposition
200’s registration provision,30 the remainder of our analysis
focuses solely on the validity of Proposition 200’s polling
place provision. Proposition 200 amended section 16-579 of
the Arizona Revised Statutes to require that a voter “present
one form of identification that bears the name, address and
photograph of the elector or two different forms of identifica-
tion that bear the name and address of the elector” as a prereq-
uisite to receiving a ballot. Ariz. Rev. Stat. § 16-579(A)
(2005). The Secretary of State, acting under statutory author-
ity, see Ariz. Rev. Stat. § 16-452(A), (B), promulgated a pro-
cedure specifying the “forms of identification” accepted under
the statute, which included photograph-bearing documents
such as driver’s licenses as well as non-photograph-bearing
documents such as utility bills or bank statements. In 2009,
the state legislature amended section 16-579 to codify that pro-
cedure.31
gress rejected an amendment to the NVRA which would have provided
that “nothing in this Act shall prevent a State from requiring presentation
of documentation relating to citizenship of an applicant for voter registra-
tion,” H.R. Rep. No. 103-66, at 23 (1993), reprinted in 1993 U.S.C.C.A.N.
140, 148. The conferees explained that the amendment was not “consistent
with the purposes of” the NVRA and “could effectively eliminate, or seri-
ously interfere with, the mail registration program of the Act.” Id.
30
Congress’s authority under the Elections Clause is limited to preempt-
ing state regulations as they relate to federal elections. Therefore, our
holding invalidating Proposition 200’s registration provision does not pre-
vent Arizona from applying a proof of citizenship requirement to voter
registrations for state elections. However, because Arizona has presented
its system of voter registration as concurrently registering voters for state
and federal elections, we do not consider whether Proposition 200’s regis-
tration provision, as applied only to voter registrations for state elections,
is valid under Gonzalez and ITCA’s remaining claims.
31
Section 16-579(A)(1) now provides that a voter must “present any of
the following” before being permitted to vote:
4150 GONZALEZ v. ARIZONA
Gonzalez and ITCA challenge Proposition 200’s polling
place provision on three grounds: that it is a prohibited voting
qualification under section 2 of the VRA, an unconstitutional
poll tax under the Twenty-fourth Amendment, and a violation
of the Fourteenth Amendment’s Equal Protection Clause. We
first consider Gonzalez’s argument that Proposition 200’s
polling place provision violates section 2 of the VRA.
(a) A valid form of identification that bears the photograph, name
and address of the elector that reasonably appear to be the same
as the name and address in the precinct register, including an Ari-
zona driver license, an Arizona nonoperating identification
license, a tribal enrollment card or other form of tribal identifica-
tion or a United States federal, state or local government issued
identification. Identification is deemed valid unless it can be
determined on its face that it has expired.
(b) Two different items that contain the name and address of the
elector that reasonably appear to be the same as the name and
address in the precinct register, including a utility bill, a bank or
credit union statement that is dated within ninety days of the date
of the election, a valid Arizona vehicle registration, an Arizona
vehicle insurance card, an Indian census card, tribal enrollment
card or other form of tribal identification, a property tax state-
ment, a recorder’s certificate, a voter registration card, a valid
United States federal, state or local government issued identifica-
tion or any mailing that is labeled as “official election material.”
Identification is deemed valid unless it can be determined on its
face that it has expired.
(c) A valid form of identification that bears the photograph, name
and address of the elector except that if the address on the identi-
fication does not reasonably appear to be the same as the address
in the precinct register or the identification is a valid United
States Military identification card or a valid United States pass-
port and does not bear an address, the identification must be
accompanied by one of the items listed in subdivision (b) of this
paragraph.
GONZALEZ v. ARIZONA 4151
A
[10] Section 2(a) of the VRA prohibits states from impos-
ing any voting qualification that “results in a denial or
abridgement of the right of any citizen of the United States to
vote on account of race or color.” 42 U.S.C. § 1973(a). A vio-
lation of section 2 is established “if, based on the totality of
circumstances, it is shown that the political processes leading
to nomination or election in the State or political subdivision
are not equally open to participation” by members of a pro-
tected class, “in that its members have less opportunity than
other members of the electorate [1] to participate in the politi-
cal process and [2] to elect representatives of their choice.” Id.
§ 1973(b). Said otherwise, a plaintiff can prevail in a section
2 claim only if, “based on the totality of the circumstances,
. . . the challenged voting practice results in discrimination on
account of race.” Farrakhan v. Washington, 338 F.3d 1009,
1017 (9th Cir. 2003) (emphasis omitted); see also United
States v. Blaine Cnty., 363 F.3d 897, 903 (9th Cir. 2004).
Although proving a violation of § 2 does not require a show-
ing of discriminatory intent, only discriminatory results, see
Chisom v. Roemer, 501 U.S. 380, 383-84 (1991); Ruiz v. City
of Santa Maria, 160 F.3d 543, 557 (9th Cir. 1998) (per
curiam), proof of “causal connection between the challenged
voting practice and a prohibited discriminatory result” is cru-
cial, Smith v. Salt River Project Agric. Improvement & Power
Dist., 109 F.3d 586, 595 (9th Cir. 1997) (internal quotation
marks and brackets omitted); see also id. (“[A] bare statistical
showing of disproportionate impact on a racial minority does
not satisfy the § 2 ‘results’ inquiry.”). Said otherwise, a § 2
challenge “based purely on a showing of some relevant statis-
tical disparity between minorities and whites,” without any
evidence that the challenged voting qualification causes that
disparity, will be rejected. Id.32
32
This approach applies both to claims of vote denial and of vote dilu-
tion. Id. at 596 n.8.
4152 GONZALEZ v. ARIZONA
In applying the totality of the circumstances test, “a court
must assess the impact of the contested structure or practice
on minority electoral opportunities ‘on the basis of objective
factors.’ ” Thornburg v. Gingles, 478 U.S. 30, 44 (1986)
(quoting S. Rep. No. 97-417, at 27 (1982), reprinted in 1982
U.S.C.C.A.N. 177, 205). In Gingles, the Supreme Court cited
a non-exhaustive list of nine factors (generally referred to as
the “Senate Factors” because they were discussed in the Sen-
ate Report on the 1982 amendments to the VRA) that courts
should consider in making this totality of the circumstances
assessment. Id. at 44-45. Relevant here, the factors direct
courts to consider the history of official state discrimination
against the minority with respect to voting, the extent to
which voting in the state is racially polarized, and “the extent
to which members of the minority group in the state or politi-
cal subdivision bear the effects of discrimination in such areas
as education, employment and health, which hinder their abil-
ity to participate effectively in the political process.” Id. at
36-37 (quoting S. Rep. No. 97-417, at 28-29, reprinted in
1982 U.S.C.C.A.N. at 206-07); see Farrakhan, 338 F.3d at
1016, 1020. “[T]here is no requirement that any particular
number of factors be proved, or that a majority of them point
one way or the other.” Gingles, 478 U.S. at 45 (quoting S.
Rep. No. 97-417, at 29, reprinted in 1982 U.S.C.C.A.N. at
209) (internal quotation marks omitted).
Gonzalez argues that Proposition 200 disparately impacts
Latino voters, unlawfully diluting their right to vote and deny-
ing them the right to vote by providing them with less oppor-
tunity than other members of the electorate to participate in
the political process. Considering both Proposition 200’s reg-
istration requirement and its requirement that voters who cast
ballots at the polls present specified identification, the district
court determined, after “examining the facts as a whole, [that]
Proposition 200 does not have a statistically significant dispa-
rate impact on Latino voters.”33 In considering the Senate Fac-
33
Judge Pregerson’s dissent relies heavily on statistical analysis pre-
GONZALEZ v. ARIZONA 4153
tors listed above, the district court found that Latinos had
suffered a history of discrimination in Arizona that hindered
their ability to participate in the political process fully, that
there were socioeconomic disparities between Latinos and
whites in Arizona, and that Arizona continues to have some
degree of racially polarized voting. Nevertheless, the district
court concluded that Gonzalez’s claim failed because there
was no proof of a causal relationship between Proposition 200
and any alleged discriminatory impact on Latinos. The district
court noted that not a single expert testified to a causal con-
nection between Proposition 200’s requirements and the
observed difference in the voting rates of Latinos, and that
Gonzalez had failed to explain how Proposition 200’s require-
ments interact with the social and historical climate of dis-
crimination to impact Latino voting in Arizona. Therefore, the
district court concluded that Gonzalez had not proved that
Proposition 200 results in discrimination “on account of race
or color.”
Because a § 2 analysis requires the district court to engage
in a “searching practical evaluation of the ‘past and present
reality,’ ” Gingles, 478 U.S. at 45 (quoting S. Rep. 97-417, at
30, reprinted in 1982 U.S.C.C.A.N. at 208), a district court’s
examination in such a case is “intensely fact-based and local-
ized,” Salt River, 109 F.3d at 591. We therefore “[d]efer[ ] to
the district court’s superior fact-finding capabilities,” id., and
review for clear error the district court’s findings of fact,
including its ultimate finding whether, under the totality of the
circumstances, the challenged practice violates § 2, Old Per-
pared by the plaintiffs’ expert, Dr. Louis Lanier. Dis. op. at 4197-98. The
state’s expert, however, testified that Lanier’s results were unreliable in
light of several factors, including the absence of evidence that the Latinos
whose votes went uncounted were qualified to vote. In holding that the
plaintiffs had not shown that Proposition 200 had a statistically significant
impact on Latino voters, the district court implicitly rejected Lanier’s testi-
mony, a conclusion that is “plausible in light of the record viewed in its
entirety.” Anderson v. Bessemer City, 470 U.S. 564, 573-74 (1985).
4154 GONZALEZ v. ARIZONA
son v. Cooney, 230 F.3d 1113, 1119 (9th Cir. 2000) (citing
Gingles, 478 U.S. at 78-79). We review de novo the district
court’s legal determinations and mixed findings of law and
fact. Salt River, 109 F.3d at 591.
[11] The district court did not clearly err in concluding that
Gonzalez failed to establish that Proposition 200’s polling
place provision, see Ariz. Rev. Stat. § 16-579, had a disparate
impact on Latinos. To prove a § 2 violation, Gonzalez had to
establish that this requirement, as applied to Latinos, caused
a prohibited discriminatory result. Here, Gonzalez alleged that
“Latinos, among other ethnic groups, are less likely to possess
the forms of identification required under Proposition 200 to
. . . cast a ballot,” but produced no evidence supporting this
allegation.34 The record does include evidence of Arizona’s
general history of discrimination against Latinos and the exis-
tence of racially polarized voting. But Gonzalez adduced no
evidence that Latinos’ ability or inability to obtain or possess
identification for voting purposes (whether or not interacting
with the history of discrimination and racially polarized vot-
ing) resulted in Latinos having less opportunity to participate
in the political process and to elect representatives of their
choice. Without such evidence, we cannot say that the district
court’s finding that Gonzalez failed to prove causation was
clearly erroneous. Therefore we affirm the district court’s
denial of Gonzalez’s VRA claim.35
34
The dissent likewise fails to cite any evidence to support the theory
that Proposition 200’s polling place provision “has the effect of keeping
Latino voters away from the polls” because it “evokes fear of discrimina-
tion.” Dis. op. at 4200.
35
Gonzalez also argues that the district court erred in evaluating one of
the Senate Factors and in concluding that the disparate impact on Latinos
was statistically insignificant. Because the failure to show causation is dis-
positive, however, we need not reach these issues.
GONZALEZ v. ARIZONA 4155
B
We next consider Gonzalez and ITCA’s claim that Proposi-
tion 200’s polling place provision violates the Twenty-fourth
Amendment to the U.S. Constitution.36
The Twenty-fourth Amendment provides:
The right of citizens of the United States to vote in
any primary or other election for President or Vice
President, for electors for President or Vice Presi-
dent, or for Senator or Representative in Congress,
shall not be denied or abridged by the United States
or any State by reason of failure to pay any poll tax
or other tax.
U.S. Const. amend. XXIV, § 1. Gonzalez and ITCA do not
argue that requiring voters to show identification at the polls
is itself a poll tax. Rather, they argue that, because some vot-
ers do not possess the identification required under Proposi-
tion 200, those voters will be required to spend money to
obtain the requisite documentation, and that this payment is
indirectly equivalent to a tax on the right to vote.
[12] This analysis is incorrect. Although obtaining the
identification required under § 16-579 may have a cost, it is
neither a poll tax itself (that is, it is not a fee imposed on vot-
ers as a prerequisite for voting), nor is it a burden imposed on
voters who refuse to pay a poll tax. Cf. Harman, 380 U.S. at
541-42.
36
Although ITCA’s briefing collapses the Twenty-fourth and Fourteenth
Amendment poll tax claims into a single argument, these are different
claims that arise under different constitutional amendments. The Twenty-
fourth Amendment extends only to federal elections, see Harman v. For-
ssenius, 380 U.S. 528, 540 (1965), whereas the Fourteenth Amendment
can also invalidate restrictions on the right to vote in state elections, see
Harper v. Va. State Bd. of Elections, 383 U.S. 663, 666 (1966). We will
therefore address these two claims separately.
4156 GONZALEZ v. ARIZONA
Our conclusion is consistent with Harman, the only
Supreme Court case considering the Twenty-fourth Amend-
ment’s ban on poll taxes. In that case, the Court considered
a state statute that required voters to either pay a $1.50 poll
tax on an annual basis or go through a “cumbersome proce-
dure,” id. at 541, for filing an annual certificate of residence,
id. at 530-32. There was no dispute that the $1.50 fee, if it
were a freestanding prerequisite for voting, would constitute
a poll tax barred by the Twenty-fourth Amendment. See id. at
540. Accordingly, the only question before the Court was
whether the state “may constitutionally confront the federal
voter with a requirement that he either pay the customary poll
taxes as required for state elections or file a certificate of resi-
dence.” Id. at 538. The Court enunciated the rule that a state
may not impose “a material requirement solely upon those
who refuse to surrender their constitutional right to vote in
federal elections without paying a poll tax.” Id. at 541. Apply-
ing this rule, the Court determined that the state’s certificate
of residence requirement was a material burden: among other
things, the procedure for filing the certificate was unclear, the
requirement that the certificate be filed six months before the
election “perpetuat[ed] one of the disenfranchising character-
istics of the poll tax which the Twenty-fourth Amendment
was designed to eliminate,” and the state had other alterna-
tives to establish that voters were residents, including “regis-
tration, use of the criminal sanction, purging of registration
lists, [and] challenges and oaths.” Id. at 541-43. Accordingly,
the Court concluded that it was “constrained to hold that the
requirement imposed upon the voter who refuses to pay the
poll tax constitutes an abridgment of his right to vote by rea-
son of failure to pay the poll tax.” Id. at 542.
[13] Proposition 200’s polling place provision is not a poll
tax under Harman. Requiring voters to show identification at
the polls does not constitute a tax.37 Nor does the identifica-
37
Voters who use an early ballot to vote do not even have to show iden-
tification. Ariz. Rev. Stat. § 16-550(A) (for early ballots, elector identity
is verified by signature comparison alone).
GONZALEZ v. ARIZONA 4157
tion requirement place a material burden on a voter “solely
because of his refusal to waive [his] constitutional immunity”
to a poll tax, id.; rather, under Proposition 200, all voters are
required to present identification at the polls. Because Arizo-
na’s system does not, as a matter of law, qualify as a poll tax,
we affirm the district court’s conclusion that Proposition
200’s polling place provision does not violate the Twenty-
fourth Amendment.
C
[14] Nor is Proposition 200’s polling place provision an
unconstitutional poll tax under the Fourteenth Amendment’s
Equal Protection Clause. Harper is the leading Supreme
Court case considering whether a state law is a poll tax under
the Fourteenth Amendment. In Harper, the Supreme Court
held that a state law levying an annual $1.50 poll tax on indi-
viduals exercising their right to vote was unconstitutional
under the Equal Protection Clause. 383 U.S. at 664-66 & n.1.
The Court held that “the interest of the State, when it comes
to voting, is limited to the power to fix qualifications,” and
that the imposition of poll taxes fell outside this power
because “[w]ealth, like race, creed, or color, is not germane
to one’s ability to participate intelligently in the electoral pro-
cess.” Id. at 668. Because the state’s poll tax made affluence
of the voter an electoral standard, and such a standard is irrel-
evant to permissible voter qualifications, the Court concluded
that the tax was invidiously discriminatory and a per se viola-
tion of the Equal Protection Clause. Id. at 666-67.
Proposition 200’s polling place provision falls outside of
Harper’s rule that “restrictions on the right to vote are invidi-
ous if they are unrelated to voter qualifications.” Crawford,
553 U.S. at 189 (Stevens, J., announcing the judgment of the
Court). Requiring voters to provide documents proving their
identity is not an invidious classification based on impermissi-
ble standards of wealth or affluence, even if some individuals
have to pay to obtain the documents. On the contrary, such a
4158 GONZALEZ v. ARIZONA
requirement falls squarely within the state’s power to fix core
voter qualifications. Nevertheless, ITCA argues that the
Court’s more recent decision in Crawford, 553 U.S. 181,
extended Harper’s holding that an electoral standard based on
voter affluence is invidiously discriminatory (and thus a per
se violation of the Equal Protection Clause) to encompass
indirect fees, such as the fees or costs necessary to obtain
identification documents.
ITCA’s argument is based on a misreading of Crawford.
Crawford involved an Indiana state requirement that a citizen
voting in person or at the office of the circuit court clerk
before election day present a photo identification card issued
by the government. Id. at 185. The state would provide a free
photo identification to “qualified voters able to establish their
residence and identity.” Id. at 186. A number of plaintiffs
challenged this requirement on the ground that the “new law
substantially burden[ed] the right to vote in violation of the
Fourteenth Amendment.” Id. at 187. Although the Court was
unable to agree on the rationale for upholding Indiana’s photo
identification requirement,38 neither the lead opinion nor the
concurrence held that Harper’s per se rule applied. See id. at
203-04. The lead opinion, upon which ITCA relies, explained
that Harper’s “litmus test” made “even rational restrictions on
the right to vote . . . invidious if they are unrelated to voter
qualifications.” Id. at 189-90. But according to the lead opin-
ion, later election cases had moved away from Harper to
apply a balancing test to state-imposed burdens on the voting
process. Id. Under these later cases, a court “must identify and
evaluate the interests put forward by the State as justifications
for the burden imposed by its rule, and then make the ‘hard
judgment’ that our adversary system demands.” Id. at 190.
The lead opinion then proceeded to apply this balancing test
38
The lead opinion authored by Justice Stevens was joined by Chief Jus-
tice Roberts and Justice Kennedy. Justice Scalia filed a concurring opinion
joined by Justices Thomas and Alito. Justices Ginsburg, Souter, and
Breyer dissented.
GONZALEZ v. ARIZONA 4159
to the Indiana photo identification requirement. Id. at
191-200. Because Crawford did not extend Harper’s per se
rule to other burdens imposed on voters, it does not support
ITCA’s argument that Proposition 200’s identification
requirement is per se invalid.
[15] Although ITCA’s reliance on Crawford is not entirely
clear, ITCA does not appear to argue that Proposition 200’s
polling place provision is invalid under Crawford’s balancing
test. Such an argument would be unavailing in any event. The
lead opinion in Crawford held that the burden imposed on cit-
izens who must obtain a photo identification document was
not sufficiently heavy to support a facial attack on the consti-
tutionality of the state law, in light of the state’s legitimate
interests in deterring and detecting voter fraud, modernizing
election procedures, and safeguarding voter confidence. Id. at
191, 202-03. The same reasoning is applicable here. While the
lead opinion noted that photo identification cards were pro-
vided for free by Indiana, it also recognized that to obtain
these free cards, prospective voters needed to “present at least
one ‘primary’ document, which can be a birth certificate, cer-
tificate of naturalization, U.S. veterans photo identification,
U.S. military photo identification, or a U.S. passport.” Id. at
198 n.17. Obtaining these primary documents, the Supreme
Court acknowledged, may require payment of a fee. Id.
Because Proposition 200’s polling place provision allows vot-
ers to present these same sorts of primary documents, Propo-
sition 200 is no more burdensome than the identification
requirement upheld in Crawford. Nor has ITCA suggested
any reason why Arizona’s interests in imposing a photo iden-
tification requirement would be less weighty than the state
interests at issue in Crawford. Therefore, even under the bal-
ancing test set forth in Crawford’s lead opinion, we would
uphold Proposition 200’s polling place identification require-
ment against a facial challenge.
In sum, because any payment associated with obtaining the
documents required under Proposition 200’s polling place
4160 GONZALEZ v. ARIZONA
provision is related to the state’s legitimate interest in assess-
ing the eligibility and qualifications of voters, the photo iden-
tification requirement is not an invidious restriction under
Harper, and the burden is minimal under Crawford. As such,
the polling place provision does not violate the Fourteenth
Amendment’s Equal Protection Clause.
IV
Our system of dual sovereignty, which gives the state and
federal governments the authority to operate within their sepa-
rate spheres, “is one of the Constitution’s structural protec-
tions of liberty.” Printz v. United States, 521 U.S. 898, 921
(1997). “Just as the separation and independence of the coor-
dinate branches of the Federal Government serve to prevent
the accumulation of excessive power in any one branch, a
healthy balance of power between the States and the Federal
Government will reduce the risk of tyranny and abuse from
either front.” Id. (internal quotation marks omitted). Despite
our respect for the state’s exercise of its sovereign authority,
however, the Constitution’s text requires us to safeguard the
specific enumerated powers that are bestowed on the federal
government. The authority granted to Congress under the
Elections Clause to “make or alter” state law regulating pro-
cedures for federal elections is one such power. The Framers
of the Constitution were clear that the states’ authority to reg-
ulate federal elections extends only so far as Congress
declines to intervene. See U.S. Const. art. 1, § 4, cl. 1; Foster,
522 U.S. at 69. Given the paramount authority delegated to
Congress by the Elections Clause, we conclude that the
NVRA supersedes Proposition 200’s conflicting registration
requirement for federal elections, Ariz. Rev. Stat. § 16-
166(F). We uphold Proposition 200’s polling place provision
with respect to all other claims.39
AFFIRMED in part and REVERSED in part.
39
Each party shall bear its own costs on appeal.
GONZALEZ v. ARIZONA 4161
APPENDIX A
(NOTE: APPENDIX A and APPENDIX B,
slip op. pages 4161-4191, is posted separately)
4192 GONZALEZ v. ARIZONA
Chief Judge KOZINSKI, concurring:
I find this a difficult and perplexing case. The statutory lan-
guage we must apply is readily susceptible to the interpreta-
tion of the majority, but also that of the dissent. For a state to
“accept and use” the federal form could mean that it must
employ the form as a complete registration package, to the
exclusion of other materials. This would construe the phrase
“accept and use” narrowly or exclusively. But if we were to
give the phrase a broad or inclusive construction, states could
“accept and use” the federal form while also requiring regis-
trants to provide documentation confirming what’s in the
form. This wouldn’t render the federal form superfluous, just
as redundant braking systems on cars and secondary power
supplies on computers aren’t superfluous. This is known col-
loquially as wearing a belt and suspenders, and is widely used
to safeguard against failure of critical systems (i.e., getting
caught with your pants down). See Redundancy (engineering),
Wikipedia, http://goo.gl/ce8il (last visited Jan. 9, 2012).
The two constructions embody different, and somewhat
antithetical, policies. The narrow construction maximizes fed-
eral control and national uniformity at the expense of state
autonomy and local control. The broad construction defers to
state and local interests while sacrificing national uniformity.
As a linguistic matter, neither construction of “accept and
use” strikes me as superior.
If Congress had made it clear that states must accept the
federal form as a complete application, or that they need not,
I would cheerfully enforce either command. But Congress
used tantalizingly vague language, which would make it very
useful to fall back on a rule of construction, such as the Clear
Statement Rule or the Presumption Against Preemption.
Judge Ikuta is right, however, that the Supreme Court has so
far adopted such rules only for Supremacy Clause cases, not
for those arising under the Elections Clause. See maj. op. at
4127-29.
GONZALEZ v. ARIZONA 4193
There would, I believe, be ample justification for adopting
such rules for Elections Clause preemption. While the federal
government has an interest in how elections for federal office
are conducted, the states are not disinterested bystanders. Fed-
eral elections determine who will represent the state and its
citizens in Congress, the White House and, indirectly, the fed-
eral courts. Making sure that those representatives are chosen
by the state’s qualified electors is of vital significance to the
state and its people. Moreover, the federal government is
commandeering the state’s resources, giving states a signifi-
cant stake in ensuring that the process is conducted efficiently
and fairly. Rightly or wrongly, many still blame (or credit)
voting irregularities in Illinois for John F. Kennedy’s election
as President in 1960, and in Texas for Lyndon Johnson’s elec-
tion to the Senate in 1948. States have an interest in ensuring
that their reputations aren’t soiled in this fashion for decades,
maybe longer. The risk of fraud and other malfeasance may
depend on local conditions and thus differ from state to state.
States with a tradition of electoral chicanery, or with large
transient populations, may need to impose stricter controls to
ensure the integrity of their voting processes.
The fact remains that the Supreme Court has never articu-
lated any doctrine giving deference to the states under the
Elections Clause. This may be because it hasn’t had occasion
to do so in modern times. Foster v. Love, 522 U.S. 67 (1997),
was an easy case where the state’s election scheme directly
contradicted the constitutional text, while the state’s interest
in avoiding a general election on the same day as the rest of
the country was slight. A case such as ours, where the statu-
tory language is unclear and the state has a compelling inter-
est in avoiding fraudulent voting by large numbers of
unqualified electors, presents a far more suitable case for
deciding whether we should defer to state interests. But only
the Supreme Court can adopt such a doctrine.
In the absence of something better, I must resort to second-
ary aids to construction. In this case, we have legislative his-
4194 GONZALEZ v. ARIZONA
tory that supports reading “accept and use” in the exclusive
sense, which would preclude states from seeking additional
documentation. Senator Simpson proposed amending the bill
that eventually became the NVRA to provide that “[n]othing
in this Act shall be construed to preclude a State from requir-
ing presentation of documentary evidence of the citizenship of
an applicant for voter registration.” 139 Cong. Rec. 5098
(Mar. 16, 1993). He explained his purpose: “It allows States
to check documents to verify citizenship. . . . [I]t simply
makes clear that this bill must not be interpreted to stop any
particular State from requiring documents. This includes
States which currently by State law check documents, as well
as those who may wish to check documents in the future.
. . . I offer my amendment to try to ensure that States will con-
tinue to have the right, if they wish, to require documents ver-
ifying citizenship . . . .” Id. at 5098-99. Senator Simpson
understood that “accept and use” could be read narrowly to
preclude states from seeking documentation beyond the fed-
eral form, and offered his amendment to ensure that the
phrase would be construed in the broad, inclusive sense.
Senator Ford, the NVRA’s sponsor, responded: “[T]here is
nothing in the bill now that would preclude the State’s requir-
ing presentation of documentary evidence of citizenship. I
think basically this is redundant, even though you probably
put it in a section. But there is nothing in there now that
would preclude it.” Id. at 5099. Senator Ford seemed to
believe that “accept and use” was already being used in the
inclusive sense, and was amenable to adding language that
would confirm this.
The Senate adopted the Simpson amendment, but the
House bill lacked a similar provision. The Conference Com-
mittee adopted the House version, explaining that “[t]he con-
ferees agree with the House bill and do not include this
provision from the Senate amendment. It is not necessary or
consistent with the purposes of this Act. Furthermore, there is
concern that it could be interpreted by States to permit regis-
GONZALEZ v. ARIZONA 4195
tration requirements that could effectively eliminate, or seri-
ously interfere with, the mail registration program of the Act.
It could also adversely affect the administration of the other
registration programs as well. . . . These concerns lead the
conferees to conclude that this section should be deleted.”
H.R. Rep. No. 103-66, at 23-24 (1993), reprinted in 1993
U.S.C.C.A.N. 140, 148-49 (Conf. Rep.). The conferees thus
rejected the Simpson amendment, not because they thought it
superfluous (as did Senator Ford) but because the inclusive
meaning of “accept and use” was inconsistent with their
vision of how the Act should operate.
After the conference, the Senate re-passed the NVRA with-
out the Simpson amendment. S. Rep. No. 103-6, at 12-13
(1993). A minority of senators opposed the bill in part
because they thought “requiring proof of citizenship” would
be helpful in combating fraud and worried that the bill “would
preclude such corrective action.” Id. at 50.
In the House, some members sought to recommit the bill in
order to tack on a Simpson-like amendment. They argued that
failure to do so would encourage voter fraud. See 139 Cong.
Rec. at 9228 (May 5, 1993) (Rep. Livingson: “Without this
provision, this bill is an auto-fraudo bill.”); id. at 9229 (Rep.
Cox: “Despite its benign name, this pernicious bill would
make it nearly impossible to prevent ineligible people—
including illegal aliens—from voting.”). Their arguments fell
on deaf ears. Id. at 9231.
The Supreme Court has warned us time and again not to
rely on legislative history in interpreting statutes, largely
because of the ease with which floor statements and commit-
tee reports can be manipulated to create a false impression as
to what the body as a whole meant. But the history here con-
sists of actions taken by legislative bodies, not just words
penned by staffers or lobbyists. The Court has recognized that
such drafting history can offer interpretive insight: “Con-
gress’ rejection of the very language that would have
4196 GONZALEZ v. ARIZONA
achieved the result the Government urges here weighs heavily
against the Government’s interpretation.” Hamdan v. Rums-
feld, 548 U.S. 557, 579-80 (2006). While the dissenting Jus-
tices in Hamdan objected to the use of legislative history,
their objection rested in large part on the fact that it was being
used to defeat clear statutory language. See id. at 665-68
(Scalia, J., dissenting, joined by Thomas and Alito, JJ.). I’m
not convinced they would object with equal vigor where, as
here, the statutory language is in equipoise and both chambers
affirmatively rejected efforts to authorize precisely what Ari-
zona is seeking to do.
The dissent mistakenly sees some inconsistency between
my conclusion today and that in my “well-drafted dissent to
the original panel opinion.” Dissent at 4211 n.1. But, as a
member of a three-judge panel, I had no occasion to construe
the statute de novo because we were bound by the law of the
circuit and the law of the case. Gonzalez v. Arizona, 624 F.3d
1162, 1198-99 (9th Cir. 2010) (Kozinski, C.J., dissenting in
large part). To the extent I could reach the issue at all, it was
only to determine whether “Gonzalez I is clearly wrong.” Id.
at 1208. Because I concluded then, as I do now, that “both
preemptive and non-preemptive constructions of ‘accept’ and
‘use’ are plausible,” I deferred to the earlier panel’s construc-
tion. Id. at 1206. As an en banc court, we cannot defer to
Gonzalez I. Rather, we must come up with what we think is
the best construction of the statute. For the reasons outlined
above, and those in Judge Ikuta’s very fine and thorough
opinion, I believe the preemptive reading of the statute is
somewhat better than the alternative.
BERZON, Circuit Judge, concurring, with whom MURGUIA,
Circuit Judge, joins:
I fully concur in the majority opinion but note the follow-
ing: With respect to whether Proposition 200’s polling place
GONZALEZ v. ARIZONA 4197
provision “results in a denial or abridgement of the right of
any citizen of the United States to vote on account of race or
color” in violation of § 2(a) of the VRA, 42 U.S.C. § 1973(a),
the court holds only that the current record is insufficient to
show a “causal connection between the challenged voting
practice and [a] prohibited discriminatory result,” Smith v.
Salt River Project Agric. Improvement & Power Dist., 109
F.3d 586, 595 (9th Cir. 1997) (alteration in original) (internal
quotation marks omitted). I concur in Section III.A of the
majority opinion with that understanding of its limited reach.
A different record in a future case could produce a different
outcome with regard to the § 2 causation question.
PREGERSON, Circuit Judge, concurring in part and dissent-
ing in part:
I agree with the majority that Proposition 200’s registration
provision violates the National Voter Registration Act
(“NVRA”). See Maj. Op. at 4148. I part ways with the major-
ity, however, when it comes to Proposition 200’s requirement
that voters provide identification at the polls (“the polling
place provision”). The majority concludes that Gonzalez’s
challenge to the polling place provision under Section 2 of the
Voting Rights Act fails because Gonzalez has not established
that the polling place provision “results in discrimination on
account of race.” Maj. Op. at 4151. I respectfully disagree
with the majority, for two reasons.
First, in concluding that Proposition 200’s polling place
provision does not disparately impact Latino voters, the
majority conflates statistics on Proposition 200’s registration
provision with Proposition 200’s polling place provision. See
Maj. Op. at 4152-53. A thorough review of the record reveals
that Proposition 200’s polling place provision has a signifi-
cant disproportionate impact on Latino voters. In the 2006
general election, Latino voters comprised between 2.6% and
4198 GONZALEZ v. ARIZONA
4.2% of the voters who turned out to vote, but Latino voters
cast 10.3% of the ballots that went uncounted because of
insufficient identification. Latino voters were over-
represented by 200% to 500% in ballots that were uncounted
because of insufficient identification.
Second, the majority mistakenly gives short shrift to the
“Senate Factors” from Thornburg v. Gingles, 478 U.S. 30, 44
(1986).1 In discussing these factors, the majority acknowl-
edges that Latino voters have “suffered a history of discrimi-
nation in Arizona that hindered their ability to participate in
the political process fully, that there were socioeconomic dis-
parities between Latinos and whites in Arizona, and that Ari-
zona continues to have some degree of racially polarized
voting.” Maj. Op. at 4152. Despite acknowledging these facts,
the majority concludes that Proposition 200’s polling place
provision does not result “in discrimination on account of
race.” Maj. Op. at 4151. But a proper Section 2 analysis
requires that we “consider how the challenged practice ‘inter-
1
In Gingles the Supreme Court held that a court should consider the fol-
lowing factors, commonly referred to as the “Senate Factors,” in determin-
ing whether a plaintiff has established a violation of Section 2 of the
Voting Rights Act:
[T]he history of voting-related discrimination in the State or
political subdivision; the extent to which voting in the elections
of the State or political subdivision is racially polarized; the
extent to which the State or political subdivision has used voting
practices or procedures that tend to enhance the opportunity for
discrimination against the minority group, such as unusually
large election districts, majority vote requirements, and prohibi-
tions against bullet voting; the exclusion of members of the
minority group from candidate slating processes; the extent to
which minority group members bear the effects of past discrimi-
nation in areas such as education, employment, and health, which
hinder their ability to participate effectively in the political pro-
cess; the use of overt or subtle racial appeals in political cam-
paigns; and the extent to which members of the minority group
have been elected to public office in the jurisdiction.
Gingles, 478 U.S. at 44-45.
GONZALEZ v. ARIZONA 4199
acts with social and historical conditions’ ” to cause an
inequality in the opportunities of Latino voters to cast their
ballots. Farrakhan v. Washington, 338 F.3d 1009, 1016 (9th
Cir. 2003) (quoting Gingles, 478 U.S. at 47).
Indeed, as the district court recounted in much detail, de
jure discrimination against Latinos in Arizona existed during
most of the twentieth century. Just prior to 1910, Arizona vot-
ers passed a literacy law that explicitly targeted Mexicans and
disqualified non-English speakers from voting in state elec-
tions. As late as the 1960s, these literacy requirements were
a precondition for voting in Arizona.
After Arizona attained statehood in 1912, the new state
government engaged in an anti-immigrant campaign charac-
terized by a series of proposals aimed at restricting the politi-
cal rights of Mexican immigrants’ and limiting their right to
work. The new Arizona constitution restricted non-citizens
from working on public projects. In 1914, the Arizona legisla-
ture enacted the “eighty percent law,” which stated that eighty
percent of the employees in businesses that had five or more
employees had to be “native-born citizens of the United
States.”
Segregation of Latinos in housing and public accommoda-
tions was also common in Arizona during most of the twenti-
eth century. In the years immediately following World War II,
the city of Phoenix segregated Latino veterans in separate
housing units. Movie theaters, restaurants, and stores fre-
quently excluded Latinos or required Latinos to sit in segre-
gated areas. Public parks and swimming pools were also
segregated. A particularly notorious example of this segrega-
tion occurred in Tempe, where Latinos were only permitted
to use the public swimming pool the day before the pool was
drained.
In my view, statistics showing that Proposition 200’s poll-
ing place provision disparately impact Latino voters, when
4200 GONZALEZ v. ARIZONA
coupled with Arizona’s long history of discrimination against
Latinos, current socioeconomic disparities between Latinos
and whites in Arizona, and racially polarized voting in Ari-
zona, establish that Proposition 200’s polling place provision
results in discrimination on account of race.
History has also shown that when a Latino voter
approaches the polling place but is stopped by a person per-
ceived to be an authority figure checking for identification,
there’s something intimidating about that experience that
evokes fear of discrimination. This intimidation has the effect
of keeping Latino voters away from the polls.
In sum, I would hold that Proposition 200’s polling place
provision results in discrimination on account of race, in vio-
lation of Section 2 of the Voting Rights Act.
RAWLINSON, Circuit Judge, joined by Judge N.R. Smith,
concurring in part and dissenting in part:
I concur in the majority’s conclusion that Arizona’s Propo-
sition 200, which amended Ariz. Rev. Stat. § 16-579 to
require proof of identification prior to receiving a ballot, does
not violate the Voting Rights Act or the Equal Protection
Clause of the Fourteenth Amendment. I also agree that the
statutory amendment did not constitute a poll tax as pro-
scribed in the Twenty-fourth Amendment to the United States
Constitution. As a result, I join Part III of the majority opin-
ion.
I respectfully dissent from the balance of the majority opin-
ion, because I am not persuaded that application of Proposi-
tion 200’s proof-of-citizenship provision to prospective voters
using the National Mail Voter Registration Form (the Federal
Form) is precluded by the National Voting Rights Act
(NVRA). In my view, there is no conflict between the NVRA
GONZALEZ v. ARIZONA 4201
and Arizona’s proof-of-citizenship requirement. In fact, the
plain text of the NVRA validates Arizona’s proof-of-
citizenship requirement, even while recognizing that Arizona
must “accept and use” the Federal Form.
The text of the NVRA allows for Arizona’s proof-of-
citizenship requirement, notwithstanding whether a presump-
tion against preemption generally exists under the Election
Clause, as it does under the Supremacy Clause. The NVRA
states the following:
In addition to accepting and using the [Federal
Form], a State may develop and use a mail voter reg-
istration form that meets all of the criteria stated in
section 1973gg-7(b) of this title for the registration
of voters in elections for Federal office.
42 U.S.C. § 1973gg-4(a)(2). Therefore, the plain text of the
NVRA authorizes a state to “develop and use a mail voter
registration form . . . for the registration of voters in elections
for Federal office,” in addition to the Federal Form if it
“meets all of the criteria stated in section 1973gg-7(b).” As
part of such criteria, the NVRA provides that a mail voter reg-
istration form “may require only such identifying information
. . . as is necessary to enable the appropriate State election
official to assess the eligibility of the applicant . . .” 42 U.S.C.
§ 1973gg-7(b)(1) (emphasis added). Section 1973gg-7(b)(2)
then specifies that citizenship is a necessary eligibility
requirement. Thus, the NVRA expressly allows Arizona to
require proof of eligibility, such as proof of citizenship,
because “it is identifying information . . . necessary to enable
the . . . State election official to assess eligibility,” and Ari-
zona accepts and uses the Federal Form. See 42 U.S.C.
§ 1973gg-7(b)(1).
I emphasize the point that the NVRA itself expressly, not
merely implicitly, authorizes a state to “develop and use” its
own form “for the registration of voters in elections for Fed-
4202 GONZALEZ v. ARIZONA
eral office,” in addition to accepting and using the [Federal
Form].” 42 U.S.C. § 1973gg-4(a)(2). Because a state must
accept and use the Federal Form but is also expressly autho-
rized to develop and use its own form that meets the criteria
in § 1973gg-7(b), the plain text creates a minimum standard
through the Federal Form and allows a state to require more
as long as it is within the bounds of § 1973gg-7(b). See Hui
v. Castaneda, 130 S. Ct. 1845, 1855 (2010) (“We are
required, however, to read the statute according to its text.
. . .”); Arkansas v. Farm Credit Servs. of Cent. Ark., 520 U.S.
821, 827 (1997) (noting that it is a “basic principle that statu-
tory language is to be enforced according to its terms”). While
state forms must comply with the same general standards as
the Federal Form, there is no mandate that states must use
only the information included in the Federal Form or that the
Federal Form is a complete application. See 42 U.S.C.
§ 1973gg-4(a)(2). States have the same discretion to decide
the contents of the form they develop and use, when drafted
in accordance with § 1973gg-7(b), as the Election Assistance
Commission (EAC) had for the Federal Form’s requirements.
See 42 U.S.C. §§ 1973gg-4(a)(2), 1973gg-7(b). Thus, the stat-
ute expressly authorizes a state, as long as it complies with the
standards set forth in § 1973gg-7(b), to require additional
information outside of the Federal Form for voter registration.
I do not know how to more clearly and emphatically stress the
point that the plain text of the statute allows Arizona to
require proof-of-citizenship in elections for federal office.
The majority argues that the NVRA preempts the proof-of-
citizenship requirement, because the NVRA requires states to
“accept and use” the Federal Form and Proposition 200’s
requirement to “ ‘reject any application for registration that is
not accompanied by satisfactory evidence of United States cit-
izenship’ . . . do not operate harmoniously. . . .” Majority
Opinion, p. 4138-39 (citing Ariz. Rev. Stat. § 16-166(F)). The
majority rejects Arizona’s argument that the statutes are har-
monious, because Arizona is accepting and using the Federal
Form for voter registration as long as evidence of citizenship
GONZALEZ v. ARIZONA 4203
is provided pursuant to the state form requirement. See id. at
4139-40. The majority reasons that rejecting voter registration
based on anything outside the Federal Form is inappropriate
because it “is contrary to the form’s intended use and pur-
pose.” Id. at 4140. Further, the majority opines that its reading
is consistent with the “natural reading of the NVRA.” Id. I
disagree.
The terms of the statute trump the intended use and purpose
of the Federal Form. See Lockart v. United States, 546 U.S.
142, 146 (2005) (“The fact that Congress may not have fore-
seen all of the consequences of a statutory enactment is not
a sufficient reason for refusing to give effect to its plain
meaning.”) (citation omitted); see also Siripongs v. Davis,
282 F.3d 755, 758 (9th Cir. 2002) (“In interpreting the statute
we look to general principles of statutory construction and
begin with the language of the statute itself.” If the “language
is clear on its face, the sole function of the court is to enforce
it according to its terms. . . .”) (citation, alteration and internal
quotation marks omitted). Further, the “accept and use” provi-
sions of the NVRA do not establish a conflict between Propo-
sition 200 and the NVRA where one is not otherwise present
in the text of the statutes. Reading the requirement to “accept
and use” the Federal Form in § 1973gg-4(a)(1) along with
§ 1973gg-4(a)(2) does not naturally lead to the conclusion
that no requirement outside the Federal Form may disallow a
voter’s registration. The relevance and importance of
§ 1973gg-4(a)(2) is paramount. Invalidating the registration
provision ignores § 1973gg-4(a)(2), which qualifies the extent
to which a state must depend on the Federal Form for federal
voter registration—i.e., the Federal Form is not the exclusive
form.
The majority seems to read § 1973gg-4(a)(2) in such a way
as to acknowledge a state’s right to develop and use its own
form (if compliant with § 1973gg-7(b)), but that a state form
cannot require anything more than the Federal Form or cause
a voter to be ineligible to register to vote in federal elections.
4204 GONZALEZ v. ARIZONA
However, a more logical and appropriate reading is that the
Federal Form acts as the default—setting minimum
requirements—, and a state may require additional require-
ments for federal elections through its own form if the
requirements comply with the criteria of the statute (essen-
tially setting the maximum available requirements that may be
used in the state form). See La. Pub. Serv. Comm’n v. F.C.C.,
476 U.S. 355, 370 (1986) (“[W]here possible, provisions of a
statute should be read so as not to create a conflict. . . .”).
Therefore, there is flexibility while providing for control
through the standards in § 1973gg-7(b). The Federal Form
acts as a baseline while the criteria in § 1973gg-7(b) act as
outer limits.
The requirement to “accept and use” the Federal Form does
not preclude states from imposing additional requirements.
First, accepting and using something does not mean that it is
necessarily sufficient. For example, merchants may accept
and use credit cards, but a customer’s production of a credit
card in and of itself may not be sufficient. The customer must
sign and may have to provide photo identification to verify
that the customer is eligible to use the credit card. Second, the
ordinary and natural meaning of the word “use” is “to
employ” or “derive service from . . .”. Smith v. United States,
508 U.S. 223, 228-29 (1993) (citation omitted). The word
“accepts” means “to adopt, to agree to carry out provisions,
to keep and retain.” Worden v. SunTrust Banks, Inc., 549 F.3d
334, 344 (4th Cir. 2008) (citing Black’s Law Dictionary 12
(5th ed.1979)). It is undisputed that Arizona has employed
and derived service from the Federal Form and adopted its use
for the registration of voters in federal elections. The only real
issue is whether Proposition 200’s requirement of proof of cit-
izenship so conflicts with the use of the Federal Form that the
requirement of proof of citizenship should be voided.
I realize that the majority’s argument that “rejecting” nec-
essarily counters “accepting” has some superficial appeal. See
Majority Opinion, p. 4139. However, what is being argued is
GONZALEZ v. ARIZONA 4205
whether states must accept and use the Federal Form in their
federal election procedures as a whole, or whether they must
accept the Federal Form as completely sufficient and the sole
requirement for voter registration. Thus, the point of conten-
tion is whether Arizona defies the demand to accept and use
the Federal Form by not finding voter registration wholly suf-
ficient based solely on the Federal Form. The answer cannot
be that the Federal Form is the end-all-be-all. Section 1973gg-
4(a)(2) clarifies that “accept and use” cannot mean that a state
must allow a voter to register solely on the basis of the Fed-
eral Form, because it specifically allows a state to develop
and use a state form, in addition to the Federal Form, for fed-
eral elections. It is beyond my understanding how the Federal
Form can be considered “the end” when the NVRA explicitly
allows states to develop and use a form “[i]n addition to
accepting and using the [Federal Form].” 42 U.S.C. § 1973gg-
4(a)(2) (emphasis added).
No provision of the NVRA expressly forbids states from
requiring additional identifying documents to verify a voter’s
eligibility. The NVRA only expressly prohibits states from
requiring “notarization or other formal authentication.” 42
U.S.C. § 1973gg-7(b)(3). “We . . . read the enumeration of
one case to exclude another [if] it is fair to suppose that Con-
gress considered the unnamed possibility and meant to say no
to it. . . .” Barnhart v. Peabody Coal Co., 537 U.S. 149, 168
(2003) (citation omitted). Here, Congress prohibited requiring
notarization or other formal authentication but failed to pro-
hibit proof-of-citizenship, while expressly recognizing its
importance in voter registration. See 42 U.S.C. § 1973gg-7(b);
see also Kucana v. Holder, 130 S. Ct 827, 838 (2010)
(“Where Congress includes particular language in one section
of a statute but omits it in another section of the same Act, it
is generally presumed that Congress acts intentionally and
purposely in the disparate inclusion or exclusion.” (alteration
and citation omitted)). Nor does the NVRA state that it is the
exclusive authority on eligibility verification or that “Arizo-
na’s only role was to make [the Federal] [F]orm available to
4206 GONZALEZ v. ARIZONA
applicants and to ‘accept and use’ it for the registration of vot-
ers.“ Majority Opinion, p. 4143 (emphasis added). The lan-
guage of the statute not only does not prohibit additional
documentation requirements, it permits states to “require . . .
such identifying information . . . as is necessary to enable the
appropriate State election official to assess the eligibility of
the applicant . . .” 42 U.S.C. § 1973gg-7(b)(1).
If, as the majority believes, the requirement to accept and
use the Federal Form and the express allowance for a state to
develop and use a form that complies with the set criteria of
the statute are contradictory, see Majority Opinion, pp.
4139-43, then the court “must interpret the statute to give
effect to both provisions where possible.” See Ricci v. DeSte-
fano, 129 S. Ct. 2658, 2674 (2009) (citation omitted). Here,
it is possible and necessary to interpret the statute as requiring
states to accept and use the Federal Form, while allowing
states to demand adherence to their form and specific require-
ments for federal voter registration if in compliance with
§ 1973gg-7(b).
Reading the statute as a whole solidifies my conclusion that
Arizona’s registration provision is valid. See Samantar v.
Yousuf, 130 S. Ct. 2278, 2289 (2010) (“We do not . . . con-
strue statutory phrases in isolation; we read statutes as a
whole.” (citation and alteration omitted)); see also, K Mart
Corp. v. Cartier, Inc., 486 U.S. 281, 291 (1988) (“In ascer-
taining the plain meaning of the statute, the court must look
to the particular statutory language at issue, as well as the lan-
guage and design of the statute as a whole. . . .”) (citation
omitted). Besides the express authorization for a state to “de-
velop and use” a form compliant with the statute’s criteria, 42
U.S.C. § 1973gg-4(a)(2), the NVRA also provides that “each
State shall establish procedures to register to vote in elections
for Federal office . . . (2) by mail application pursuant to sec-
tion 1973gg-4 of this title, . . . in addition to any other method
of voter registration provided for under State law,” id.
§ 1973gg-2(a) (emphasis added). Although the NVRA
GONZALEZ v. ARIZONA 4207
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 to develop and use state specific forms, if
those forms fit within set criteria, id. § 1973gg-4(a)(2). There-
fore, Congress did not “assume exclusive control of the whole
subject . . . .” Ex Parte Siebold, 100 U.S. 371, 383 (1879)
(emphasis in the original). Arizona is allowed to require proof
of citizenship for federal voter registration because of its
expressly granted authority to develop and use a form com-
plying with § 1973gg-7(b) and may deny voter registration for
federal office for lack of such proof. See id. at 392 (“[W]e
think it clear that the clause of the Constitution relating to the
regulation of such elections contemplates such co-operation
whenever Congress deems it expedient to interfere merely to
alter or add to existing regulations of the State . . . .”).
The majority notes that, if Arizona is correct that
§§ 1973gg-4(a)(2) and 1973gg-7(b) allow the registration pro-
vision, “this would mean only that the NVRA allows Arizona
to include a proof of citizenship requirement on its State
Form.” Majority Opinion, p. 4143 (citation omitted). “It
would not mean that Arizona has authority to add this require-
ment to the Federal Form . . .” Id. However, this conclusion
ignores the specific language of § 1973gg-4(a)(2). That lan-
guage allows states to develop and use a state form complying
with the statute’s criteria for federal elections.
The majority also asserts that, even if the NVRA allows a
state form to include additional conditions within the parame-
ters of § 1973gg-7(b) (like proof-of-citizenship), a state may
not decline an applicant’s voter registration for federal elec-
tions because of the applicant’s failure to satisfy the addi-
tional conditions. See Majority Opinion, pp. 4140-41.
According to the majority,
[t]he NVRA’s State Form provision, § 1973gg-
4(a)(2), merely gives a state more options [and] Con-
4208 GONZALEZ v. ARIZONA
gress could have required all states to use only the
Federal Form . . . Instead, Congress allowed States
to use their state registration forms to register appli-
cants for both state and federal elections (provided
the state form complies with § 1973gg-7(b)). But
states cannot reject applicants who register for fed-
eral elections who use the Federal Form. . . . Major-
ity Opinion, pp. 4140-41 (emphasis by the majority).
Again, the majority’s attempt to rebut Arizona’s arguments
and this dissent contradicts the language of the NVRA and
leads to an absurd result. Under the majority’s argument, the
state form (and the additional conditions allowed in the state
form) have no real effect, because the applicant must only
meet the Federal Form requirements in order to register for
federal elections. Thus, Arizona must allow an applicant, sat-
isfying all but the proof-of-citizenship requirement, to be reg-
istered to vote in federal elections, while not allowing the
applicant to be registered for state elections. This faulty inter-
pretation contradicts the NVRA’s plain language that “a State
may develop and use a mail voter registration form that meets
all of the criteria stated in section 1973gg-7(b) of this title for
the registration of voters in elections for Federal office.” 42
U.S.C. § 1973gg-4(a)(2) (emphasis added). Put differently,
under the majority’s view, a state “registration form that
meets all the criteria stated in section 1973gg-7(b)” but that
includes an additional condition beyond the Federal Form
requirements may not be used to register “voters in elections
for Federal office,” although the state form is specifically
allowed by the language in § 1973gg-4(a)(2).
In addition, the majority believes that my interpretation of
§ 1973gg-4(a)(2) substitutes “instead of” for “[i]n addition
to.” Majority Opinion, p. 4141. However, my interpretation is
loyal to the wording “[i]n addition to,” because the Federal
Form requirements must be met. State form requirements,
constrained by § 1973-gg-7(b), are added to the Federal Form
requirements. In contrast, the majority’s view of § 1973gg-
GONZALEZ v. ARIZONA 4209
4(a)(2) basically strikes the statute’s text allowing state forms
to be used “[i]n addition to” the Federal Form “for the regis-
tration of voters in elections for Federal office.”
The majority’s view makes voter registration burdensome
for states. For example, an Arizona applicant meeting the
Federal Form requirements, but lacking proof-of-citizenship,
would have to be allowed to vote for federal officials but
could not vote for state officials. States that desire a proof-of-
citizenship requirement in their state forms (as the majority
suggests is allowed by the NVRA), would be forced to track
whether their residents are registered to vote for federal elec-
tions, state elections, or both. In essence, the majority’s alter-
ation of the statute imposes an unnecessary burden on the
states. Although “it is not our task to assess the consequences
of each approach and adopt one that produces the least mis-
chief[,]” Lewis v. City of Chi., Ill., 130 S. Ct. 2191, 2200
(2010), the majority’s view, ignoring the plain meaning of the
NVRA, cannot be what Congress intended. This is especially
true when one considers that the statutory allowance for a
state form does not displace the importance of the Federal
Form or the delegated authority to the EAC to determine the
contents of the Federal Form. The Federal Form maintains its
importance, because its use is required in all states. The Fed-
eral Form, therefore, establishes a minimum set of require-
ments. The EAC’s rejection of Arizona’s request to include a
proof-of-citizenship requirement demonstrates that the EAC
served its purpose of establishing a minimum (not a maxi-
mum) set of requirements for all states. Then, states individu-
ally are allowed to impose additional requirements within the
strict bounds of § 1973gg-7(b).
The majority believes that the proof-of-citizenship require-
ment disrupts the goal of the NVRA—to streamline the regis-
tration process. See Majority Opinion, pp. 4142-44. Although
the NVRA seeks to simplify and harmonize registration pro-
cedures, the statute also identifies “protect[ing] the integrity
of the electoral process” and “enhanc[ing] the participation of
4210 GONZALEZ v. ARIZONA
eligible citizens as voters in elections for Federal office” as
guiding purposes of the statute. 42 U.S.C. § 1973gg(b)
(emphasis added). Even under the majority’s complementary
analysis conducted pursuant to Seibold and Foster v. Love,
522 U.S. 67 (1997), see Majority Opinion, p. 4131, Arizona’s
proof-of-citizenship procedure complements—rather than
conflicts with—these important purposes. See Siebold, 100
U.S. at 384; Foster, 522 U.S. at 74 (holding that a state elec-
tion law is preempted only “to [the] extent [that] it conflicts
with federal law”). The stated harmonious purposes are not
served if ineligible voters are allowed to register.
Finally, even though allowing states to “develop and use”
their own forms (if compliant with § 1973gg-7(b)) may
decrease the efficiency of a Federal Form, this policy consid-
eration cannot overrule the express terms of the statute.
DePierre v. United States, 131 S. Ct. 2225, 2233 (2011)
(“That we may rue inartful legislative drafting, however, does
not excuse us from the responsibility of construing a statute
as faithfully as possible to its actual text. . . .”) (footnote refer-
ence omitted); Lewis, 130 S. Ct. at 2200 (“Truth to tell, how-
ever, both readings of the statute produce puzzling results.
. . . In all events, it is not our task to assess the consequences
of each approach and adopt the one that produces the least
mischief. Our charge is to give effect to the law Congress
enacted. . . .”); cf. United States v. Kennedy, 643 F.3d 1251,
1266 (9th Cir. 2011) (Ikuta, J.) (determining that a statute
compensating victims of child pornography was “a poor fit
for these types of offenses[,]” but acknowledging that “the
responsibility lies with Congress, not the courts, to develop a
scheme to ensure that defendants . . . are held liable . . .”).
In sum, the majority’s holding hinges on § 1973gg-
4(a)(1)’s requirement that states “accept and use” the Federal
Form. However, § 1973gg-4(a)(2) also allows a state to “de-
velop and use” its own form if it complies with the broad
standards in § 1973gg-7(b). Therefore, I am unable to see how
Arizona’s registration provision squarely conflicts with the
GONZALEZ v. ARIZONA 4211
NVRA or how the NVRA “assume[s] exclusive control of the
whole subject. . . .” Siebold, 100 U.S. at 383 (emphasis in the
original).1
1
Chief Judge Kozinski describes the NVRA as “readily susceptible to
the interpretation of the majority, but also that of the dissent. . . .” Concur-
ring Opinion, p. 4192. His well-drafted dissent to the original panel opin-
ion said it better. See Gonzalez v. Arizona (Gonzalez II), 624 F.3d 1162,
1206 (9th Cir. 2010) (Kozinski, J., dissenting) (“The NVRA doesn’t say
that states must treat the federal form as a complete application. . . .
There’s no question that Arizona accepts and uses the federal form for the
information contained in it. Arizona only asks for proof of citizenship in
addition to the form in order to complete the registration process.”), reh’g
en banc granted & opinion withdrawn, 649 F.3d 953 (9th Cir. 2011). This
en banc concurrence discusses the statutory language “accept and use” in
isolation, with no reference to the “[i]n addition” language in 42 U.S.C.
§ 1973gg-4(a)(2), see Concurring Opinion, again diverging from his prior
dissent, where he noted: “[S]ection 1973gg-4(a)(2) . . . allows states to
‘develop and use’ their own form if it ‘meets all of the criteria stated in
section 1973gg-7(b).’ [Gonzalez v. Arizona (Gonzalez I), 485 F.3d 1041
(9th Cir. 2007),] reads the statute correctly; it is the majority here that is
mistaken.” Gonzalez II, 624 F.3d at 1205. In fact, Chief Judge Kozinski
previously identified a basic problem with the majority’s view via a single
question: “[I]f the statute permits zero deviation from the federal form,
why permit states to develop their forms at all? The only development
needed would be photocopying the federal form.” Id. at 1209.
To determine its meaning, all of the NVRA’s language must be read
together and not in isolation. See Samantar, 130 S. Ct. at 2289 (“We do
not . . . construe statutory phrases in isolation; we read statutes as a whole.
. . .”) (citation and alteration omitted). When read together, the meaning
is clear. States must accept and use the Federal Form for registering voters
for federal elections, but may also develop and use a state form with addi-
tional conditions if they comply with § 1973gg-7(b). When the meaning
of the statute is clear, reverting to legislative history is inappropriate. See
Exxon Mobile Corp. v. Allapattah Servs., Inc., 545 U.S. 546, 567 (2005);
see also Hamdan v. Rumsfeld, 548 U.S. 557, 665-68 (2006) (Scalia, J., dis-
senting) (“We have repeatedly held that . . . reliance [on legislative his-
tory] is impermissible where, as here, the statutory language is
unambiguous. . . .”).
The legislative history is also unhelpful here, because it is unreliable.
“[L]egislative history is itself often murky, ambiguous, and contradicto-
ry.” Exxon Mobile, 545 U.S. at 568; see also Conroy v. Aniskoff, 507 U.S.
4212 GONZALEZ v. ARIZONA
Siebold meticulously outlined the interplay between elec-
tion regulations promulgated by a state government and Con-
gress respectively. In the process, the United States Supreme
Court took care to emphasize the respect that should be
accorded the procedures implemented by states. See Siebold,
100 U.S. at 394 (“State rights and the rights of the United
States should be equally respected. Both are essential to the
preservation of our liberties and the perpetuity of our institu-
511, 519 (1993) (Scalia, J., concurring) (“The greatest defect of legislative
history is its illegitimacy. We are governed by laws, not by the intentions
of legislators. As the Court said in 1844: ‘The law as it passed is the will
of the majority of both houses, and the only mode in which that will is spo-
ken is in the act itself . . . .”) (quoting Aldridge v. Williams, 44 U.S. 9, 24
(1845) (emphasis in the original). In fact, this case is a glaring example
of the flaws of using legislative history. Although the legislative history
cited by Chief Judge Kozinski supports his reasonable argument, the origi-
nal view of the NVRA’s sponsor casts doubt on the clarity of that legisla-
tive history. Senator Ford, the sponsor of the bill, thought that “there is
nothing in the bill now that would preclude the State’s requiring presenta-
tion of documentary evidence of citizenship.” 139 Cong. Rec. S2897-4, at
S2902 (Mar. 16, 1993). He thought that an amendment specifying that a
state could require proof-of-citizenship was redundant. See id. Therefore,
even though the Conference Committee opined that the unamended
NVRA disallowed proof-of-citizenship, H.R. Rep. No. 103-66, at 20
(1993), reprinted in 1993 U.S.C.C.A.N. 140, 148-49 (Conf. Rep.), it is
unclear how many of the members of Congress who voted for the NVRA
agreed with Senator Ford. See Exxon Mobile, 545 U.S. at 570 (“The utility
of either can extend no further than the light it sheds on how the enacting
Legislature understood the statutory text. Trying to figure out how to
square the Subcommittee Working Paper’s understanding with the House
Report’s understanding, or which is more reflective of the understanding
of the enacting legislators, is a hopeless task.”); cf. Hamdan, 548 U.S. at
666 (Scalia, J., dissenting) (“Whether the floor statements are spoken
where no Senator hears, or written where no Senator reads, they represent
at most the views of a single Senator. . . .”). As has been previously said,
“[j]udicial investigation of legislative history has a tendency to become,
to borrow Judge Leventhal’s memorable phrase, an exercise in ‘looking
over a crowd and picking out your friends.’ ” Exxon Mobile, 545 U.S. at
568 (quoting Patricia M. Wald, Some Observations on the Use of Legisla-
tive History in the 1981 Supreme Court Term, 68 Iowa L. Rev. 195, 214
(1983)).
GONZALEZ v. ARIZONA 4213
tions. But, in endeavoring to vindicate the one, we should not
allow our zeal to nullify or impair the other.”) (emphasis
added).
The Supreme Court recognized the right of Congress to
exercise its power to enact voting regulations that would
supersede regulations promulgated by a state. See id. at 393.
However, the Supreme Court also noted that “we are bound
to presume that Congress has done so in a judicious manner;
that it has endeavored to guard as far as possible against any
unnecessary interference with State laws and regulations
. . .” Id.
The Supreme Court further reasoned that the power of Con-
gress to enact statutes governing state matters “does not dero-
gate from the power of the State to execute its laws at the
same time and in the same places . . . .” Id. at 395 (emphasis
added). The laws of the state are preempted if, and only if,
“both cannot be executed at the same time . . . .” Id. (emphasis
added).
In Siebold, there was no dispute regarding a conflict
between the state and federal regulations. Rather, the question
raised was whether Congress may enact partial regulations to
be implemented together with state regulations governing
election procedures. See id. at 382. Having answered that
question in the affirmative, the Supreme Court denied the writ
of habeas corpus filed by defendants who were convicted of
violating the federal laws. See id. at 374, 399.
Foster, the more recent case, addressed an actual conflict
between a state law and a federal law. Indeed, in Foster a bla-
tant conflict existed between federal statutes requiring Con-
gressional elections to be held “the Tuesday after the first
Monday in November in an even-numbered year” and a state
statutory scheme under which no election was held on the
date designated by Congress if a candidate received a major-
4214 GONZALEZ v. ARIZONA
ity of the votes during an earlier “open primary” election. 522
U.S. at 68-69.
The Supreme Court explained that the issue to be decided
was “a narrow one turning entirely on the meaning of the
state and federal statutes . . .” Id. at 71 (emphasis added). The
Court defined election as encompassing “the combined
actions of voters and officials meant to make a final selection
of an officeholder . . .” Id. The Court noted that Congress had
established the Tuesday following the first Monday in
November as “the day” for electing members of Congress. Id.
Because the system in Louisiana was “concluded as a matter
of law before the federal election day, with no act in law or
in fact to take place on the date chosen by Congress,” the
Louisiana statute conflicted with 2 U.S.C. § 7, and was pre-
empted. Id. at 73.
Because no Congressional election was to be held on the
date Congress explicitly designated as “the day” for holding
Congressional elections, the Louisiana statutory scheme
clearly and directly conflicted with § 7. Reiterating that fed-
eral law “mandates holding all elections for Congress . . . on
a single day throughout the Union,” id. at 70, the Court
voided Louisiana’s statutory scheme. See id. at 74.
Unlike the statutory scheme voided in Foster, Proposition
200’s proof-of-citizenship provision does not present the bla-
tant conflict addressed by the Supreme Court in that case.
Indeed, the majority rests its analysis on what it perceives to
be the “expansive” sweep of the Elections Clause. Majority
Opinion, p. 4126-27 n.8. However, the message from Siebold
is to the opposite effect. After taking great pains to emphasize
the equal role of the states in preserving the integrity of fed-
eral elections, the Supreme Court counseled that we should
not hasten to declare preemption of a state statutory scheme.
Indeed, Siebold expressly held that the paramountcy of fed-
eral law extends only “so far as the two are inconsistent, and
no farther . . . .” Siebold, 100 U.S. at 386. The Court clarified
GONZALEZ v. ARIZONA 4215
that state and federal enactments conflict only “[i]f both can-
not be performed . . .” Id.
Foster couched its holding in similar fashion, clarifying
that the preeminence of federal statutes over state statutes
applies only to the extent that the two conflict, and only “so
far as the conflict extends . . .” Foster, 522 U.S. at 69, (quot-
ing Siebold, 100 U.S. at 384).
In making the determination whether the Louisiana statu-
tory scheme violated 2 U.S.C. § 7, the Supreme Court focused
on the word “election” as used in § 7. Id. at 71. The Court
consulted a dictionary for the definition of “election” to deter-
mine if a conflict existed between Louisiana’s statutory
scheme and § 7.
It is important to remember that the Supreme Court opined
that State enactments are superseded by Federal enactments
only “[i]f both cannot be performed . . .” Siebold, 100 U.S. at
386. As applied in Foster, the state statutory scheme was
voided because it was impossible to hold a Congressional
election on the designated day if the election was in fact com-
pleted on an earlier date. See Foster, 522 U.S. at 73.
In my view, the majority opinion has stretched the principle
established in Siebold and applied in Foster beyond its
intended bounds.2
2
I do not agree that the cases cited on pages 4126-27, n.8 of the majority
opinion establish that the Supreme Court has “construed Congress’s
authority under the Election Clause expansively.” Rather, in the earlier
years of this nation’s existence, when many states resisted the notion of
a centralized government, these cases served to emphasize that federal
elections conducted in the various states were subject to federal regulation.
See, e.g., The Ku Klux Cases, 110 U.S. 651, 657-58 (1884) (“If this gov-
ernment is anything more than a mere aggregation of delegated agents of
other states and governments, each of which is superior to the general gov-
ernment, it must have the power to protect the elections on which its exis-
tence depends, from violence and corruption . . . .”); id. at 662 (“This
proposition answers, also, another objection to the constitutionality of the
laws under consideration, namely, that the right to vote for a member of
congress . . . is governed by the law of each state respectively . . . .”).
4216 GONZALEZ v. ARIZONA
Indeed, both Siebold and Foster took care to delineate that
preemption extended only as far as a conflict exists, and no
farther. See Siebold, 100 U.S. at 386; Foster, 522 U.S. at 69.
And a conflict exists only if the two regulations cannot co-
exist. See Siebold, 100 U.S. at 386. As discussed above, such
is not the case for Proposition 200’s requirement that a pro-
spective voter present proof of citizenship, when considered
with the contents of the Federal Form.
The fact that the NVRA contains a provision precluding the
requirement of “notarization of other formal authentication”
in no way conflicts with Proposition 200’s proof-of-
citizenship requirement. Notarization and authentication are
concerned with the genuineness of an executed document.
See, e.g., Federal Rule of Evidence 901(a) (“The requirement
of authentication . . . is satisfied by evidence sufficient to sup-
port a finding that the matter in question is what its proponent
claims.”); see also In re Big River Grain, Inc., 718 F.2d 968,
971 (9th Cir. 1983) (noting that “the notary’s function is to
protect against recording false instruments . . .”). In contrast,
Proposition 200’s proof-of-citizenship requirement has noth-
ing to do with notarization or authentication and everything to
do with affirming eligibility for registration. Because the
requirements of both the NVRA and Proposition 200 may be
met without conflict, they can easily co-exist under the Elec-
tion Clause. See Siebold, 100 U.S. at 386; Foster, 522 U.S. at
69. As both statutes may be enforced with no conflict, the
NVRA does not pre-empt Proposition 200. See id. For that
reason, I would affirm the district court’s grant of summary
judgment to the State of Arizona. I respectfully dissent from
the majority’s conclusion to the contrary.