Monday, March 18, 2013

READ: Arizona AG Tom Horne's Closing Statement To U.S. Supreme Court

Here is Arizona Attorney General Tom Horne's rebuttal argument to the U.S. Supreme Court this morning in the Arizona v. Inter Tribal Council of Arizona oral arguments.  He was able to get in this "closing statement" uninterrupted by the nine Justices - which is somewhat unusual in these arguments and unlike the preceding 55-odd minutes of today's arguments.

The basic issue in this case is whether Arizona's law requiring people to present proof of citizenship when registering to vote - for national and local elections - is permitted when the federal law simply requires the registering person to affirm that they are a citizen eligible to vote.  Horne says that the legislative history in Congress' debates of the NVRA and HAVA does not prohibit Arizona from requiring additional "information".

(The transcript below is from the U.S. Supreme Court, and contains some apparent, minor errors.)

MR. HORNE: Thank you, Your Honor, and I'll apologize in advance for talking really quickly. The -my friend says in discussing Section 7(b)(1) that it would not be rational to require only the signature. But that's exactly what they did. All they required was the signature, and 7(b)(1) has nothing to do with that; 7(b)(2) requires a signature. So what the EAC chose to do under 7(b)(1) was exactly nothing, zero, which -which emphasizes the point that this is the responsibility of the States, and that's how they understood it.
With respect to the license having -- we cited ARA Section 28-3173, an Arizona statute in our reply brief that provides that you -- you must renew every 12 years. So by 2004, the problem that my friend spoke about was completely erased. Everybody had a new license which would be sufficient for this purpose, 100 percent.
They admit that we can reject applications by reference to other -- by reference to other documentation but they try to draw a distinction between that and asking the person to write down the driver's 
license number. But there is nothing in the statute that justifies that distinction. A reference to criminal history has nothing to do with whether or not there is a distinction with respect to citizenship between looking at other documents and asking the person for their driver's license numbers. In both cases it's something outside of the form and they have admitted we can go outside the form.

With respect to legislative history, Your Honor, I think the key thing -- Mr. Justice Breyer, in your question was, it's only in one place. There are a lot of other places that go the other way. So we cannot conclude from that one place what the majority of Congress expected.
With respect to HAVA, in HAVA, the Congress had another opportunity to expressly state that the State could not look to external evidence and ask for additional evidence, and they chose not to do that. And so I would say that HAVA is further evidence that Congress was not choosing to prohibit us from asking for additional information to fulfill our function, if it's necessary, of being sure that the applicant is eligible to vote.
With respect to the Siebold case, the court in Siebold specifically said there will be no preemption
unless there is a direct conflict and only to the extent of that conflict, and in that connection -- one last sentence, Your Honor -- if there are two plausible interpretations, ordinary principles of Federalism say one should not choose the interpretation that results in preemption, and the same thing applies with respect to the canon of constitutional accordance.

Thank you, Your Honor.

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