[EL] My comment on ABA Journal Squib on No. 12-71 Arizona v ITCA

[bzall at aol.com]

Re: this piece


“Justices will probe Arizona’s voter registration law”
Posted on March 14, 2013 12:45 pm by Rick Hasen
ABA Journal reviews the Arizona voting case before the Supreme Court. 


I just posted this comment:


Wow, this is an incomplete and misleading report on this case.
Despite my respect for Justin Levitt, this case has little to do with voter fraud at the polls. It is a voter REGISTRATION case, and everyone (and I do mean pretty much everyone) agrees that there is a problem with erroneous voter registrations. 
Take Prof. Richard Hasen, one of the leading proponents of the “no fraud at the polls” argument; Hasen recently wrote an op-ed in the New York Times that said 
“Unlike impersonation fraud, noncitizen voting cannot be dismissed as a Republican fantasy.” Richard Hasen, “A Détente Before the Election,” The New York Times, (Aug 5, 2012, 9:13 PM), available at: http://campaignstops.blogs.nytimes.com/2012/08/05/a-dtente-before-the-election/?ref=opinion.
The reality is simply that persons who are not eligible to register to voter, such as non-citizens, submit voter registration applications. Whether you think that is “fraud” or not depends on whether you think fraud involves intentional misconduct, or you include persons who mistakenly try to register. (Many non-citizens are misled into filing registration applications, as the lower court found in this case, and are often genuinely distressed once they find out that such applications will adversely affect their chances of becoming citizens.) But there is no doubt that there have been hundreds of thousands of erroneous voter registration applications filed in recent years.
So, in light of that, this is not a difficult case to understand: a 9th Circuit panel held that a federal agency can force a state to accept a voter registration application with only a signature on a statement that a person is a citizen, without any further information. The 9th Circuit said that the statute permitted only the signature requirement, and no more. Yet the Supreme Court, in an earlier case, said, “The NVRA does not list, for example, all the other information the State may – or may not – provide or request.” Young v. Fordice, 520 U.S. 273, 286 (1997).
As I explain in my amicus brief in the case, http://www.americanbar.org/content/dam/aba/publications/supreme_court_preview/briefs-v2/12-71_pet_amcu_auld.authcheckdam.pdf, the 9th Circuit’s opinion ignores the plain language of the statute, which requires States to make it easier for “eligible citizens” to register, and to protect the integrity of the voter registration rolls. You can see the four goals of the statute at: 42 U.S.C. § 1973gg(b)(1), (2), (3), and (4). At a time when so many erroneous registration applications are filed, this can’t be what Congress had in mind.
Perhaps the article could be updated to include some actual review of the statute or the briefs already reported by the ABA, rather than complaints about some other problem?


Barnaby Zall 
Of Counsel 
Weinberg, Jacobs & Tolani, LLP 
10411 Motor City Drive, Suite 500
Bethesda, MD 20817
301-231-6943 (direct dial) 
bzall at aol.com 
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