Gonzalez v. Arizona

12 Cal. Daily Op. Serv. 4138

2012 Daily Journal D.A.R. 4803

677 F.3d 383

Maria M. GONZALEZ,; Luciano Valencia; The Inter Tribal Council of Arizona, Inc.; Arizona Advocacy Network; Steve M. Gallardo; League of United Latin American Citizens Arizona; League of Women Voters of Arizona; People for the American Way Foundation; Hopi Tribe, Plaintiffs,andBernie Abeytia; Arizona Hispanic Community Forum; Chicanos Por La Causa; Friendly House; Jesus Gonzalez; Debbie Lopez; Southwest Voter Registration Education Project; Valle Del Sol; Project Vote, Plaintiffs–Appellants,

v.State of ARIZONA; Shelly Baker, La Paz County Recorder; Berta Manuz, Greenlee County Recorder; Candace Owens, Coconino County Recorder; Lynn Constable, Yavapai County Election Director; Kelly Dastrup, Navajo County Election Director; Laura Dean–Lytle, Pinal County Recorder; Judy Dickerson, Graham County Election Director; Donna Hale, La Paz County Election Director; Susan Hightower Marlar, Yuma County Recorder; Gilberto Hoyos, Pinal County Election Director; Laurette Justman, Navajo County Recorder; Patty Hansen, Coconino County Election Director; Christine Rhodes, Cochise County Recorder; Linda Haught Ortega, Gila County Recorder; Dixie Mundy, Gila County Election Director; Brad Nelson, Pima County Election Director; Karen Osborne, Maricopa County Election Director; Yvonne Pearson, Greenlee County Election Director; Penny Pew, Apache County Election Director; Helen Purcell, Maricopa County Recorder; F. Ann Rodriguez, Pima County Recorder, Ken Bennett, Defendants–Appellees,Maria M. Gonzalez; Bernie Abeytia; Arizona Hispanic Community Forum; Chicanos Por La Causa; Friendly House; Jesus Gonzalez; Debbie Lopez; Southwest Voter Registration Education Project; Luciano Valencia; Valle Del Sol; People for the American Way Foundation; Project Vote, Plaintiffs,andThe Inter Tribal Council of Arizona, Inc.; Arizona Advocacy Network; Steve M. Gallardo; League of United Latin American Citizens Arizona; League of Women Voters of Arizona; Hopi Tribe, Plaintiffs–Appellants,

v.State of Arizona; Ken Bennett; Shelly Baker, La Paz County Recorder; Berta Manuz, Greenlee County Recorder; Candace Owens, Coconino County Recorder; Patty Hansen, Coconino County Election Director; Kelly Dastrup, Navajo County Election Director; Lynn Constable, Yavapai County Election Director; Laura Dean–Lytle, Pinal County Recorder; Judy Dickerson, Graham County Election Director; Donna Hale, La Paz County Election Director; Susan Hightower Marlar, Yuma County Recorder; Gilberto Hoyos, Pinal County Election Director; Laurette Justman, Navajo County Recorder; Christine Rhodes, Cochise County Recorder; Linda Haught Ortega, Gila County Recorder; Dixie Mundy, Gila County Election Director; Brad Nelson, Pima County Election Director; Karen Osborne, Maricopa County Election Director; Yvonne Pearson, Greenlee County Election Director; Penny Pew, Apache County Election Director; Helen Purcell, Maricopa County Recorder; F. Ann Rodriguez, Pima County Recorder, Defendants–Appellees.

Nos. 08–17094

08–17115.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted June 21, 2011.Filed April 17, 2012.

Preempted

A.R.S. § 16–166(F)

Nina Perales, Esq. (argued), Mexican American Legal Defense and Educational Fund, San Antonio, TX, for plaintiffs-appellants Jesus Gonzalez, et al.

Jon M. Greenbaum, Esq. (argued), Robert A. Kengle, Lawyers' Committee for Civil Rights Under Law, Washington, D.C., David J. Bodney, Esq., Steptoe & Johnson, LLP, Phoenix, AZ, David B. Rosenbaum, Esq., Thomas L. Hudson, Esq., Osborn Maledon, P.A., Phoenix, AZ, Joe P. Sparks, Esq., The Sparks Law Firm, Scottsdale, AZ, Daniel B. Kohrman, Esq., AARP, Washington, D.C., for plaintiffs-appellants The Inter Tribal Council of Arizona, et al.Samuel R. Bagenstos (argued), DOJ, Washington, D.C., for amicus curiae United States.Thomas C. Horne (argued), Attorney General, Phoenix, AZ, Mary O'Grady, Solicitor General, Phoenix, AZ, for defendant-appellee Ken Bennett.Appeals from the United States District Court for the District of Arizona, Roslyn O. Silver, Chief District Judge, Presiding. D.C. Nos. 2:06–cv–01268–ROS, 06–cv–01362–PCT–JAT, 06–cv–01575–PHX–EHC.Before: ALEX KOZINSKI, Chief Judge, HARRY PREGERSON, PAMELA ANN RYMER, SUSAN P. GRABER, MARSHA S. BERZON, JOHNNIE B. RAWLINSON, RICHARD R. CLIFTON, JAY S. BYBEE, SANDRA S. IKUTA, N. RANDY SMITH, and MARY H. MURGUIA, Circuit Judges.¹Opinion by Judge IKUTA; Concurrence by Chief Judge KOZINSKI; Concurrence by Judge BERZON; Partial Concurrence and Partial Dissent by Judge PREGERSON; Partial Concurrence and Partial Dissent by Judge RAWLINSON.

OPINION

IKUTA, Circuit Judge:

Proposition 200 requires prospective voters in Arizona to provide proof of U.S. citizenship in order to register to vote, see Ariz.Rev.Stat. § 16–166(F) (the “registration provision”), and requires registered voters to show identification to cast a ballot at the polls, see Ariz.Rev.Stat. § 16–579(A) (the “polling place provision”). This appeal raises the questions whether Proposition 200 violates § 2 of the Voting Rights Act of 1965 (VRA), 42 U.S.C. § 1973, is unconstitutional under the Fourteenth or Twenty-fourth Amendments to the Constitution, or is void as inconsistent with the National Voter Registration Act of 1993 (NVRA), 42 U.S.C. §§ 1973gg et seq. We uphold Proposition 200's requirement that voters show identification at the polling place, but conclude that the NVRA supersedes Proposition 200's registration provision as that provision is applied to applicants using the National Mail Voter Registration Form (the “Federal Form”) to register to vote in federal elections.

I

On November 2, 2004, Arizona voters passed a state initiative, Proposition 200, which (upon proclamation of the Governor) enacted various revisions to the state's election laws. As explained in more detail below, Proposition 200's registration provision amended Arizona's voter registration procedures to require the County Recorder to “reject any application for registration that is not accompanied by satisfactory evidence of United States citizenship.” Ariz.Rev.Stat. § 16–166(F). Proposition 200's polling place provision amended Arizona's election day procedures to require voters to present specified forms of identification at the polls. See id. § 16–579(A).

Shortly after Proposition 200's passage, a number of plaintiffs filed lawsuits against Arizona ² to enjoin these changes. Two groups of plaintiffs are relevant to this appeal: the Gonzalez plaintiffs (Gonzalez) and the Inter Tribal Council of Arizona plaintiffs (ITCA).³

The district court consolidated the various complaints. After the district court denied the plaintiffs' motion for a preliminary injunction, Gonzalez and ITCA appealed. See Gonzalez v. Arizona ( Gonzalez I ), 485 F.3d 1041, 1046 (9th Cir.2007). Because the briefing schedule for the appeal extended beyond the 2006 election, Gonzalez and ITCA moved for an emergency interlocutory injunction (which would prevent the implementation of Proposition 200 pending the disposition of the appeal of the district court's denial of a preliminary injunction), which we granted. See id. After Arizona petitioned for certiorari, the Supreme Court vacated the emergency injunction and remanded the case to this court for a determination of the merits of the appeal. See Purcell v. Gonzalez, 549 U.S. 1, 5–6, 127 S.Ct. 5, 166 L.Ed.2d 1 (2006) (per curiam).

On remand, Gonzalez and ITCA pursued their claim for preliminary injunctive relief only with respect to Proposition 200's registration requirement. Gonzalez I, 485 F.3d at 1048. The panel in Gonzalez I affirmed the district court's denial of the preliminary injunction, holding that Proposition 200's registration provision was not an unconstitutional poll tax and was not superseded by the NVRA. See id. at 1049, 1050–51.

On remand, the district court held that Proposition 200's polling place provision was not a poll tax under the Twenty-fourth Amendment and its registration provision did not conflict with the NVRA, and granted summary judgment to Arizona on these claims. After trial, the district court resolved all other claims in favor of Arizona, holding that Proposition 200 did not violate § 2 of the VRA or the Equal Protection Clause of the Fourteenth Amendment and did not constitute a poll tax under the Fourteenth Amendment.

Gonzalez and ITCA appealed the district court's rulings on the NVRA and Twenty-fourth Amendment claims. In addition, ITCA challenged the court's determination that Proposition 200 was not a poll tax under the Fourteenth Amendment, and Gonzalez challenged the court's determinations on the Voting Rights Act and Equal Protection Clause claims. A three-judge panel affirmed in part and reversed in part, holding that Proposition 200's polling place provision did not violate the VRA or the Fourteenth and Twenty-fourth Amendments, but that Proposition 200's registration provision was superseded by the NVRA. Gonzalez v. Arizona ( Gonzalez II ), 624 F.3d 1162 (9th Cir.2010). In deciding Gonzalez and ITCA's challenge to the registration provision, the panel overruled the contrary holding of Gonzalez I on the ground that an exception to the law of the case rule applied.⁴ See id. at 1185–91. A majority of the active judges of the court voted to rehear the case en banc.

II

We first consider Proposition 200's registration provision. See Ariz.Rev.Stat. § 16–166(F). Gonzalez and ITCA contend that this provision is preempted by the NVRA under both the Supremacy Clause and the Elections Clause of the U.S. Constitution. In response, Arizona relies on the Supremacy Clause's “presumption against preemption,” see Medtronic, Inc. v. Lohr, 518 U.S. 470, 485, 116 S.Ct. 2240, 135 L.Ed.2d 700 (1996), to argue that the NVRA neither expressly nor impliedly preempts state voter registration laws. Before addressing the parties' arguments, we first consider whether the framework of the Elections...