Constitution Check: Can citizens be trusted to actually be citizens?

Lyle Denniston looks at the core constitutional question of how far states may go to require proof of citizenship.

The statement at issue:

“In our view, citizenship is the foundation from which eligibility is derived. The National Voter Rights Act specifically talks about establishing citizenship and we feel strongly that our law is constitutional and look forward to presenting our case to the nation’s highest court.”

– Ken Bennett, Arizona’s Secretary of State, in a statement October 15 after the Supreme Court agreed to rule on the constitutionality of the state’s “Proposition 200,” requiring documentary proof of citizenship before an Arizonan can register and vote.

We checked the Constitution, and…

From America’s founding, the Constitution has made clear that those who are U.S. citizens have privileges given to them alone.  “We the People” is a phrase broad enough to encompass non-citizens living in this country, and they, too, enjoy some constitutional protection.  But they cannot vote, and they cannot hold public office.  Right now, though, the nation is engaged in a sometimes angry debate about who are citizens, and about how they may be required to prove that they are.

Using the wide authority that the Constitution gives to states to decide how to conduct elections, for state and national officials, legislatures over the past two years have begun insisting much more energetically on proof that those who claim to be eligible to vote are, in fact and in law, truly eligible.

About Constitution Check

  • In a continuing series of posts, Lyle Denniston provides responses based on the Constitution and its history to public statements about its meaning and what duties it imposes or rights it protects.

That has made the debate over citizenship more intense, and sometimes angrier, and has led to a string of court cases over voter ID requirements or other mandates of proof of eligibility to vote.

The Supreme Court has been staying mostly on the sidelines in that debate, but the justices have now been drawn directly into it.

On Monday, they agreed to confront (after this year’s election) the core constitutional question of how far states may go to require proof of citizenship – beyond the sworn word of the individual who seeks to vote and claims to be eligible.   The case turns on the constitutionality of a measure approved by Arizona’s voters eight years ago.

Back then, Arizonans were asked to take a stand on citizenship, and its proof.
A group named “Protect Arizona NOW” put on the election ballot the measure known as “Proposition 200.”   It was part of a growing campaign in the state to try to stem the tide of undocumented immigrants into the state, especially across the Mexican border.  This tide, the preamble to the measure said, “demeans the value of citizenship.”

The material distributed to voters also included a statement by Protect Arizona NOW’s chairman that there was “evidence of thousands of unverified names on our voter rolls,” suggesting that this was part of the effect of illegal immigration.  (Another part of Proposition 200 ordered state officials not to provide welfare and other state benefits to undocumented immigrants, on the theory that many were receiving such aid illegally.)

As approved by the voters, Proposition 200 required documentary proof of U.S. citizenship before one may register to vote, and before one may actually cast a ballot.

Advocacy groups for minority voters and the League of Women Voters challenged the measure in federal court, arguing that the documentary proof requirement conflicted with a 2003 federal law, the National Voter Registration Act (that is its correct name, not National Voter Rights Act).

In that national law, applied in every state, Congress basically decided to trust citizens when they claimed they were eligible to vote.  At the top of the federal voter registration form, a simple postcard document that states are required to accept for elections to federal offices, the would-be voter is asked whether he or she is a citizen and whether he or she will be at least 18 by Election Day.  If they check “yes” to both, they must sign the form to certify their answers.   The act also says that no other identification requirements can be imposed.

Arizona officials decided that this form was entirely compatible with the Proposition 200 requirement of a specific form of documentary proof of citizenship.   But they lost that argument in lower federal courts, leading the state to take the dispute on to the Supreme Court.

In considering this case, the justices will be delving deep into the Constitution, to decide how the Founders meant to divide up control of federal elections, between national and state governments, and whether those arrangements give the state the authority to impose requirements that go beyond what Congress had decided to impose for federal elections.  In the background, though, will be an unstated question that goes to the heart of citizenship: can citizens be trusted when they give their word that they are entitled to vote?  Their word of fidelity to do their duty is accepted when they take an oath in serving on juries, but is voting different?

Lyle Denniston is the National Constitution Center’s Adviser on Constitutional Literacy. He has reported on the Supreme Court for 54 years, currently covering it for SCOTUSblog, an online clearinghouse of information about the Supreme Court’s work.

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