Maria Gonzalez v. State of Arizona

Opinion by Judge IKUTA; Dissent by Chief Judge KOZINSKI.

OPINION

Proposition 200 requires prospective voters in Arizona to present documentary proof of citizenship in order to register to vote, Ariz.Rev.Stat. §§ 16-152,16-166, and requires registered voters to present proof of identification in order to cast a ballot at the polls, Ariz.Rev.Stat. § 16-579. This appeal raises the questions whether Proposition 200 violates the Voting Rights Act § 2, 42 U.S.C. § 1973 , is unconstitutional under the Fourteenth or Twenty-fourth Amendments of the Constitution, or is void as inconsistent with the National Voter *1169 Registration Act (NVRA), 42 U.S.C. § 1973gg et seq. We hold that the NVRA supersedes Proposition 200’s voter registration procedures, and that Arizona’s documentary proof of citizenship requirement for registration is therefore invalid. We reject the remainder of Appellants’ arguments.

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. Among other changes, Proposition 200 amended the procedures for voter registration and for checking voters’…

dissenting in large part: *

As the majority belatedly acknowledges more than halfway into its opinion, we don’t come to this case with a blank slate. A prior panel has already held in a published opinion that Proposition 200 isn’t preempted because the National Voter Registration Act (“NVRA”) “plainly allow[s] states, at least to some extent, to *1199 require their citizens to present evidence of citizenship when registering to vote.” Gonzalez v. Arizona, 485 F.3d 1041, 1050-51 (9th Cir.2007) (“Gonzalez I ”). That is law of the circuit and therefore binding on us. See, e.g., Miller v. Gammie, 335 F.3d 889, 899-900 (9th Cir.2003) (en banc). Even if it weren’t, it’s law of the case and can’t be lightly disregarded for that reason. See, e.g., Merritt v. Mackey, 932 F.2d 1317, 1322 (9th Cir.1991). The majority refuses to accept the consequences of this reality. First, it evades law of the circuit by creating an exception that is squarely foreclosed by a recent unanimous en banc opinion. The majority then weakens our rules governing law of the case by declaring that Gonzalez I’s interpretation of the NVRA is “clearly erroneous” when it’s clearly not. Because I believe that we must…

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

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,  and

BERNIE 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, 

17617 17618 GONZALEZ v. ARIZONA

 v. STATE OF ARIZONA; JAN BREWER, in her official capacity as Secretary of 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…