Last week, the justices heard argument on whether Arizona or any state may require proof of citizenship for voter registration.
An eventual decision in the case could shape the national political landscape for some time. Seventeen states have enacted laws requiring the presentation of some type of government-issued photo identification, such as a driver's license, before voting. The Brennan Center for Justice said those 17 states account for 218 of the 270 electoral votes needed to win the presidency.
The Arizona case pits the state requirement for proof of U.S. citizenship against the federal "Motor Voter" law that requires only filling out a form to register for federal elections.
In a brief filed on behalf on some members of a coalition challenging the state law, The Mexican American Legal Defense and Educational Fund, or MALDEF, said, "In the 2008 presidential election alone, 28 million citizens used the Federal Form to register to vote by mail, in person, or as part of a voter registration drive."
Republicans who have sponsored such laws say they are necessary to prevent widespread voter fraud. Democrats say Republicans have presented no evidence of widespread fraud, and the laws are only a thinly veiled campaign to suppress the votes of minorities, the elderly and the poor -- those least likely to have a driver's license and most likely to vote Democratic.
During argument in the Arizona case, the justices appeared to be divided along the court's ideological fault line, with four conservative justices favoring the state and four liberals favoring the state law's challengers, leaving Justice Anthony Kennedy as a possible swing vote.
SCOTUSBLOG.com reported Kennedy focused on whether an appeals court ruling striking down the state law used the correct constitutional analysis. A Huffington Post report also focused on Kennedy, who appeared to be arguing for both sides of the case from the bench.
Justice Antonin Scalia led conservatives in support of the state law, worrying over the meaning of "may" in the language of the federal law.
The case, Arizona vs. The Inter Tribal Council of Arizona Inc., first reached the U.S. Supreme Court in 2006's Purcell vs. Gonzalez. Though the justices did not reach a resolution, they sent the case back down to the lower courts.
A federal judge refused to issue an injunction against the implementation of the law in the case brought by a coalition of Hispanic, Indian and civil rights groups. However, a federal appellate panel, and then the entire 9th U.S. Circuit Court of Appeals in San Francisco reversed, saying the law violated Article I of the U.S. Constitution and the National Voter Registration Act, known as the "Motor Voter Act," which requires states to make it easier to register for federal elections. The act allows information gathered from license renewals, among other things, to be used for voter registration.
Article I says in part, the "times, places and manner of holding elections for senators and representatives, shall be prescribed in each state by the legislature thereof; but the Congress may at any time by law make or alter such regulations, except as to the places of choosing senators."
Arizona then successfully asked the U.S. Supreme Court for review.
Among the identification evidence accepted under Proposition 200 are a driver's license, birth certificate, naturalization documents and a U.S. Bureau of Indian Affairs or tribal card number. The law says each county recorder shall reject an application for registration not accompanied by such evidence.
In its petition for review, Arizona asked the Supreme Court to look at whether the appeals court erred "in creating a new heightened pre-emption test under ... [Article I's election clause]," and also made a mistake in "holding that under that test the National Voter Registration Act pre-empts an Arizona law that requests persons who are registering to vote to show evidence that they are eligible to vote?"
In other words, the state said the appeals court erred in saying the state law was trumped by the federal law.
In a response brief for some members of the coalition, lawyers argued the appeals court "carefully examined the text of the Constitution, followed this [Supreme] Court's elections clause cases and correctly concluded that the standards for conducting a pre-emption analysis under the elections clause are less deferential to states than the standards for conducting a pre-emption analysis under the supremacy clause."
The supremacy clause, in Article VI of the Constitution, says federal law prevails when there is a conflict with state law.
A second response brief from a different group in the coalition tries to take an even more forceful tone.
"Arizona's argument fails on many levels," the brief told the Supreme Court. "To begin with ... a state's authority to regulate federal elections does not fall within its 10th Amendment reserved power, rather it is a delegated authority under Article I, Section 4."
The 10th Amendment is the foundation of federalism, saying, "The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people."
After last Monday's argument, though most observers saw the court closely divided, MALDEF predicted victory.
"The citizen's right to participate and vote is too important to permit ill-founded state measures to undermine our presidential and congressional elections," MALDEF President and General Counsel Thomas A. Saenz said. "The NVRA, [Motor Voter Act] by ensuring fairness across the country, guarantees that every Arizonan will have the right to vote enjoyed in other parts of the nation."
MALDEF said it and the organization's clients filed the original challenge to the Arizona law, and MALDEF Vice President of Litigation Nina Perales argued the case at the U.S. District Court level and three times before the Ninth Circuit.
"In a 30-month period following passage of Proposition 200, Arizona denied voter registration to more than 31,500 applicants for failing to provide additional documentation," a MALDEF statement said. "In Maricopa County alone, community voter registration plummeted by 44 percent.
"Arizona claims that Proposition 200 is needed to prevent fraudulent voter registration by undocumented immigrants. Yet the state has been unable to produce even one case of a non-citizen attempting to register to vote with the federal postcard form. In fact, ironically, the great majority of rejected voters were neither immigrants nor Latino."
"Arizona's measure is simply a solution in search of a problem. We don't think the Supreme Court is going to buy this 'election fraud' fiction that Arizona is putting forth," Perales said. "We believe the court will act to protect the integrity of the Constitution."