C. Modern Disfranchisement in Arizona

In 2004, Arizona enacted Proposition 200, a state law that required first-time voters to provide proof of citizenship upon registration and all in-person voters to provide identification at the polls. Acceptable proof of citizenship included an Arizona driver's license number, a copy of a birth certificate or U.S. passport, and original naturalization documents or the number from a certificate of naturalization. Arizona, subject to section 5, obtained preclearance with regard to Proposition 200 from the Attorney General in 2005.

In 2006, Native Americans and community organizations joined various Arizona residents in Gonzalez v. Arizona, challenging Proposition 200. The following year, the U.S. Court of Appeals for the Ninth Circuit addressed the plaintiffs' challenges to Proposition 200, the most important of which were as follows: (1) the identification requirement constituted a poll tax in violation of the Twenty-Fourth Amendment, (2) the proposition imposed a severe burden on the fundamental right to vote, (3) the proposition imposed a disproportionate burden on naturalized citizens, and (4) the proposition's proof-of-citizenship requirement was inconsistent with the NVRA. The Ninth Circuit found in the defendants' favor on each issue. Because it is most intimately tied to analysis under the VRA, the plaintiffs' third claim warrants closer examination.

The plaintiffs' third claim, that Proposition 200 imposed a disproportionate burden on naturalized citizens, struck closest to the heart of section 5. Unfortunately, this issue was not resolved in Gonzalez I. The court declined to comment directly on this challenge because no naturalized citizens had submitted affidavits in support of the proposition. In a subsequent appeal, Gonzalez II, the issue was rendered moot by the court invalidating Proposition 200's proof-of-citizenship requirement as inconsistent with the NVRA. With the Ninth Circuit recently granting a rehearing en banc, the issue is not quite settled.

Without findings regarding the burden on naturalized citizens, Gonzalez II rested on a state's interest in protecting the integrity of the electoral process prevailing over a statute's potentially discriminatory effects. As this case stands, one would be hard-pressed to argue against an American citizen's right to an undiluted vote. After all, for nearly fifty years, American schoolchildren have memorized the now-famous principle derived from Baker v. Carr, one person, one vote. However, the VRA's language and Issacharoff's claim that we lack modern examples of racially discriminatory voting laws require an inquiry into more than Proposition 200's effects; they also demand an inquiry into its purpose.

In a case involving election law, injunctive relief may be granted with the court's consideration of any one of the following factors: the plaintiff's likelihood of success on the merits, the plaintiff's likelihood to be irreparably harmed by a denial of the injunction, the parties' respective hardships, or the injunction's ability to serve the public interest. In Gonzalez I, the Ninth Circuit found the balance of hardships tipped sharply in favor of [the state] due in large part to Arizona's having invested enormous resources in preparing to apply Proposition 200. Such an expenditure of resources might suggest that Proposition 200 was enacted to address a serious threat to Arizona's voters when, in fact, the state presented evidence that, in ten years, it had identified only 232 noncitizens attempting to register to vote. In 2000, Arizona's population was estimated to be 5,130,632. Of course, the 232 citizens whose votes were effectively cancelled out deserve redress, but they constituted only 0.0045% of Arizona's population. Could there be another purpose behind invest [ing] enormous resources in Proposition 200?

Perhaps the answer lies in an examination of the law in context. Proposition 200, named the Arizona Taxpayer and Citizen Protection Act, was cast by some as a reclamation of Arizona by its citizens. The requirement for voters' proof of citizenship was only one piece of the legislation; additional provisions conditioned access to public benefits on documentary proof of citizenship and criminalized state employees' failures to report immigration violations to federal authorities. Section 2 of the Act stated, [I]llegal immigration is causing economic hardship to this state. It further read, [I]llegal immigrants have been given a safe haven in this state with the aid of identification cards that are issued without verifying immigration status, and that . . . conduct . . . demeans the value of citizenship.

Despite this language, it is possible to infer that Proposition 200 was not only aimed at illegal immigrants but also laced with anti-immigration sentiments more generally. Proposition 200 was advanced primarily by two groups: Protect Arizona Now (PAN) and the Federation for American Immigration Reform (FAIR). PAN's national advisor, Virginia Abernethy, considers herself a white separatist and advocates a catch-our-breath moratorium on legal immigration. FAIR similarly describes itself as an organization dedicated to promot[ing] immigration levels consistent with the national interest--more traditional rates of about 300,000 a year.

The justification for Proposition 200 as a voter-fraud-prevention measure is unconvincing. With virtually no evidence of such fraud in Arizona's history--or, for that matter, in the country's history --the law appears to be a means of erecting barriers between the state's native and immigrant populations. In this context, section 5 remains a necessary safeguard to ensure that legitimate efforts to enforce immigration policy are not carried out at the expense of a state's minority residents and naturalized citizens.