A divided Ninth Circuit panel ruled on Tuesday that Arizona’s Proposition 200, adopted by the people of the state in 2004 to protect the integrity of elections, is invalid. Prop 200 requires voters to provide proof of eligibility (i.e., citizenship) to register and proof of identity to vote. Against precedent, statutory language, and logic, the 2–1 majority insisted that these eminently reasonable state requirements had been superseded by a federal statute, the National Voter Registration Act (NVRA), which does not mandate them.

The decision in the case, Gonzalez v. Arizona, was not actually rendered by Ninth Circuit judges, only one of whom agreed with it. As Ed Whelan notes in a Bench Memos post, the deciding vote was cast by the supposedly retired Supreme Court justice Sandra Day O’Connor. Justice O’Connor claims the power to sit by designation on cases in the federal appellate and district courts, despite the fact that she is now an overt political activist. Under the rules of judicial ethics, that ought to sideline her as a jurist. But of course, a politician can get a lot more accomplished wearing a robe.

The 62-page majority opinion is about as willful as it gets. First, it brazenly flouts circuit rules, riding roughshod over precedent to reach the point of imposing its policy preference. Then, it endeavors to justify this imposition by a dizzying disquisition on the legislative history of voting laws — a thick diversion that is thin camouflage for the stubborn fact that the NVRA’s text does not support the claim that states have been preempted from supplementing federal thresholds for voter eligibility — particularly if those supplements are geared toward shoring up the integrity of elections, which the NVRA claims as its purpose.

Indeed, as Chief Judge Alex Kozinski explains in his withering dissent, the NVRA explicitly invites states to require additional “identifying information . . . as is necessary to enable the appropriate State official to assess the eligibility of the applicant.” Consequently, several states do precisely that. The majority’s decision is thus guaranteed to be exploited by ACORN types in their campaigns to undermine electoral integrity in those states.

Furthermore, honoring the precedent that the majority sedulously resisted, Chief Judge Kozinski stresses that the case was squarely controlled by the Ninth Circuit’s 2007 ruling in this same litigation. There, the court held that the NVRA “plainly allow[s] states, at least to some extent, to require their citizens to present evidence of citizenship when registering to vote.” That should have been the end of the matter. It was, instead, just a bump in the road for the majority, which steamrolled right on by.

For court buffs, the decision has its intrigue. The majority opinion joined by Justice O’Connor was written by Judge Sandra Segal Ikuta, a Bush appointee who joined the Ninth Circuit in 2006. After graduating from UCLA Law School in 1988, Ikuta was a law clerk for two years: first for Judge Kozinski, and then for Justice O’Connor. Given Justice O’Connor’s stature and Judge Ikuta’s longstanding ties to her co-panelists, Chief Judge Kozinski’s concluding paragraph is especially stinging:

The majority distorts two major areas of law before it even reaches the merits. It creates an unprecedented exception to our law of the circuit rule, trampling underfoot a newly minted en banc opinion. The majority also makes a mess of the law of the case analysis by taking issue with a prior panel’s reasoning, not its conclusion. And, as to the merits, the panel comes nowhere close to proving that Gonzalez I’s interpretation of the National Voter Registration Act was wrong, much less clearly wrong. Few panels are able to upset quite so many apple carts all at once. Count me out.

The lengthy dissent by the circuit’s well-regarded chief judge, dismantling the majority’s house of cards floor by floor, dramatically increases the likelihood that the case will be reconsidered by the court sitting en banc. Because the Ninth Circuit is a behemoth, with 29 active judges and several other senior jurists, its much-derided en banc rules call for cases to be heard by eleven active members of the court, selected at random.