A three-judge panel of the 9th Circuit U.S. Court of Appeals has ruled that Arizona’s requirement, enacted in 2004, that one must offer proof of citizenship in order to register to vote violates the Supremacy Clause of the U.S. Constitution on the grounds the National Voter Registration Act has superseded Arizona’s law.
The three-judge panel was made up of Judge Sandra S. Ikuta (left) Retired Justice Sandra Day O’Connor(center) sitting by designation, and Chief Judge Alex Kozinski (right). The Sandra’s needed 66 pages to explain their ruling. The judges acknowledged that voter fraud is a problem in Arizona but found that the NVRA prohibition on perjury in registering to vote gives adequate protection against voter fraud.
So you don’t need to lock the door to your house or your car. Laws against larceny give adequate protection against theft.
Chief Judge Kozinski filed a strong dissent, in which he said:
As the majority belatedly acknowledges 47 pages into its opinion, we don’t come to this case with a blank slate. A prior panel has already held in a published opinion that Proposition 200 isn’t preempted because the National Voter Registration Act (“NVRA”) “plainly allow[s] states, at least to some extent, to require their citizens to present evidence of citizen- ship when registering to vote.” Gonzalez v. Arizona, 485 F.3d 1041, 1050-51 (9th Cir. 2007) (“Gonzalez I”). That is law of the circuit and therefore binding on us. See, e.g., Miller v. Gammie, 335 F.3d 889, 899-900 (9th Cir. 2003) (en banc). Even if it weren’t, it’s law of the case and can’t be lightly dis- regarded for that reason. See, e.g., Merritt v. Mackey, 932 F.2d 1317, 1322 (9th Cir. 1991). The majority refuses to accept the consequences of this reality. First, it evades law of the circuit by creating an exception that is squarely foreclosed by a recent unanimous en banc opinion. The majority then weakens our rules governing law of the case by declaring that Gonzalez I’s interpretation of the NVRA is “clearly errone- ous” when it’s clearly not. Because I believe that we must take precedent seriously and that Gonzalez I was correctly decided, I dissent from the majority’s conclusion that the NVRA preempts Arizona’s voter registration requirement.
We may have thought that once Sandra Day O’Connor retired from the U.S. Supreme Court we would no longer have to endure any more of her
idiotic peculiar Constitutional rulings, but apparently she is not content with retirement and feels the need to inflict her fellow citizens with more of this sort of nonsense.
It seems to me that if this decision conflicts with a previous unanimous en banc ruling, as Judge Kozinski states, it is ripe for en banc review with a high likelihood of being overturned there. That will be quite delicious.
UPDATE: Andrew McCarthy has a excellent analysis of this travesty of a judicial opinion at Retired O’Connor Still Making Trouble:
The decision in the case, Gonzalez v. Arizona, was not actually rendered by Ninth Circuit judges, only one of whom agreed with it. . . . the deciding vote was cast by the supposedly retired Supreme Court justice Sandra Day O’Connor. Justice O’Connor claims the power to sit by designation on cases in the federal appellate and district courts, despite the fact that she is now an overt political activist. Under the rules of judicial ethics, that ought to sideline her as a jurist. But of course, a politician can get a lot more accomplished wearing a robe.
Read all of McCarthy’s analysis here.