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Twenty years ago, Congress enacted a law aimed at streamlining voter registration. The law was motivated by a finding that 40 percent of Americans who were eligible to vote were not registered. Well, today, the meaning of that law was the subject of arguments before the Supreme Court.
NPR legal affairs correspondent Nina Totenberg was at the court.
NINA TOTENBERG, BYLINE: Under the 1993 National Voter Registration Act, voters can register by mail to vote in federal elections. The form, among other things, asks prospective voters whether they are U.S. citizens and requires them to sign under penalty of perjury.
At the time the federal law was enacted, Arizona and about half the other states had similar registration forms. But Arizona voters later passed a referendum that requires further proof of citizenship: a birth certificate, naturalization form, or passport, for instance. A federal appeals court struck down the Arizona law, saying that it conflicts with and is trumped by the federal law for federal elections.
Today in Washington, on the steps of the Supreme Court, SevaPriya Barrier, a native of Arkansas, described what happened to her when she moved to Arizona and tried to register with the federal form.
SEVAPRIYA BARRIER: At the time that I filled it out and submitted it, I did not have an Arizona driver's license yet. My registration was rejected for failure to provide that proof of citizenship.
TOTENBERG: She says she received the rejection after the deadline to register had passed.
BARRIER: So I was denied that fundamental right to vote.
TOTENBERG: But Arizona Attorney General Thomas Horne counters that the federal system does not provide enough of a guarantee that the registering voter is really a citizen.
THOMAS HORNE: It's an honor system. It says, if you sign and say you're a citizen, we have to believe you.
TOTENBERG: Inside the Supreme Court chamber today, the justices gave both sides a very hard time, starting with Horne.
Justice Ginsburg: Congress did specify how citizenship was to be handled - a signed attestation subject to a penalty of perjury. So it's not as though the federal form didn't deal with citizenship. It did, then Arizona adds something else.
Justice Kagan: Why have a federal form if Arizona could just say and in addition, you have to give 10 more items of information? Then the federal form just becomes another hoop to jump through.
Justice Sotomayor: Why would you think that Congress didn't consider the issue of fraud and struck the balance it wanted?
Justice Scalia posed a different question. Noting that a federal elections commission is charged with approving state additions to the federal form, he asked whether Arizona had asked to add a proof of citizenship to that form.
Attorney General Horne replied that the state had asked for the change but been denied.
Justice Scalia: Why didn't you go to court to challenge that?
I don't know, replied Horne. That was under my predecessor.
Justice Kennedy: Could you also ask for proof of address and date of birth on the form?
Answer: We could have if the commission found it to be consistent with the act.
Justice Kennedy went on to opine that the federal form, quote, "is not worth very much." A few minutes later, however, Kennedy said that the federal form is presumptive evidence of registration. Otherwise, the whole utility of a single form is gone.
Next up to the lectern was Patty Millett, representing those who are challenging the Arizona proof of citizenship law. Arizona, she said, simply disagrees with the balance that Congress drew. Under Arizona's proof of citizenship law, 31,000 people were rejected from voting. Eleven thousand of them subsequently registered, she said, but they had to do the double gantlet that Congress was trying to eliminate.
Justice Alito, noting that the federal law requires states to accept and use the federal form, asked whether that means the state can make no further inquiry of the person.
Millett said, in essence, yes, but that the state may check the voter's information against other databases, for instance, to make sure that the registrant is not a convicted felon and does in fact live at the address cited.
Chief Justice Roberts seemed dubious about the whole system and wondered how a state system could work separately for state and federal elections. Would there be two separate voter registration rolls, he asked.
In fact, every state has, in the interest of economy, hitched its wagon to the federal registration system. No state has two separate systems for state and federal elections. But some justices still seemed skeptical.
Justice Alito: This seems to me like a crazy system.
Justice Kennedy: It seems to me that the federal law ignores the proposition that the state has a very strong and vital interest in the integrity of its elections even when those elections are of federal officials.
A decision in the case is expected by summer.
Nina Totenberg, NPR News, Washington.
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