(This article contributed by Tempe attorney Paul Weich.)
Arizona and Kansas tonight are one large step closer to being back before mentor Supreme Court Justice Antonin Scalia. The 10th Circuit Court of Appeals reversed a lower court decision and ruled that federal voter registration forms do not have to conform with Arizona/Kansas proof of citizenship requirements.
The unanimous (three judge) opinion disagreed with Arizona/Kansas' contention that the federal Election Assistance Commission had an obligation to add an instruction to the federal form for Kansas and Arizona residents to submit proof of citizenship with the form before they were registered.
This case followed the June 2013 decision by the U.S. Supreme Court in Arizona v. Inter-Tribal Council. In that opinion striking down Arizona's proof of citizenship requirement (with the federal form), Justice Scalia advised Arizona on how to set up the dispute in such a way that he - and, possibly a majority of the Court - would find in Arizona's favor.
Arizona - and, Kansas - has followed Scalia's suggestion to the "t", first applying to the EAC for an instruction, and then filing suit after the EAC rejected it. (The EAC has been operating on zombie-like status, as all of the Commissioner positions remained unfilled by the President and Congress. President Obama recently nominated Commissioners, but Congress has yet to act.)
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