Attempting to stem the tide of illegal aliens and their potential to cast votes in federal and state elections, the State of Arizona enacted modest statutory restrictions requiring evidence of citizenship from anyone in registering to vote and at the polling place itself. The 9th Circuit (en banc) upheld the identification requirment at the polling place but not in completing the registration form. Only the Supreme Court decision in Crawford v. Marion County Elections Board, 553 U.S. 181 (2008) compelled the court to allow evidnece of citizenship at the polling place.
Gonzales (en banc) is a split decision with a variety of results. The majority of the court cited the Elections Clause of the Constitution, Art.I section 4, cl.1, as the governing authority. This Clause permits the states to govern the mechanics of an election but reserves the right of the federal government to alter those conditions. Pursuant to the Election Clause, Congress enacted the Voting Rights Act (42 U.S.1973) authorizing the federal government to issue a "federal form" for voter registration, mandatorily imposed on the states, although each state could use its own form in compliance with the federal form. According to the majority, presenting evidence of citizenship was not included in the federal form.
This conclusion of statutory construction of the VRA defies understanding for the average American. To buy groceries, enter buildings, or purchase products, a person must display a drivers licence or similar identification. But in registering to vote it is unnecessary to require identification.
Whatever the result, the Gonzales case in another example of 9th Circuit duplicity. This case has been before the 9th Circuit previously (and noted in this blog). At one point, two 9th Circuit judges assigned to motion practice set aside a decision of the district court denying plaintiffs' challenge to the Arizona statute without requiring any briefing or explanation; Gonzales v. Arizona, 485 F.3d 1041 (9th Cir. 2007.) Reversed by the Supreme Court; Purcell v. Gonzales, 549 U.S.1 (2007). On remand, a 9th Circuit panel upheld the Arizona registration law and polling place statute. Another panel reversed the original 9th Circut panel decision and ignored the "rule of the case" disallowing reversal of one panel by a subsequent panel. In addition, the 9th Circuit panel ruled that the requirement for identification at registration violated the Election Clause and VRA; Gonzales . Arizona, 624 F.3d 1162 (9th Cir. 2010).
The instant case is a rehearing of that decision. The majority in a footnote rejects the 9th Circuit panel who wrote an exception to the "law of the case rule" in its decision. The en banc court continued to accept a different understanding of the rule in the footnote equally ambiguous.