Politics & Policy

Retired O’Connor Still Making Trouble

Ex-Justice helps Ninth Circuit Overturn vote-fraud law

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statutory language, and logic, the 2–1 majority insisted that these eminently reasonable state requirements had been superseded by a federal statute, the National Voter Registration Act (NVRA), which does not mandate them.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.

Consequently, Justice O’Connor would not be involved, and it’s entirely possible that neither Judge Ikuta nor Chief Judge Kozinski would participate. (In most federal circuits, all active judges participate in en banc cases, and senior judges may also take part if they were members of the panel whose decision is being reviewed.)

Regardless of whether the Ninth Circuit reconsiders Tuesday’s ruling en banc, the case seems certain to draw Supreme Court review. In light of the dissent and the complications the case portends for other states that (like Arizona) have identification requirements beyond what NVRA prescribes, the justices will probably feel obliged to take the case and settle the conflicts. That could take many months, at least, and will not help Arizona police next Tuesday’s crucial mid-term election. Also, expect other states to be inundated in the next few days with lawsuits demanding that they refrain from requiring voters to show minimal proof of identification.

In any event, the real intrigue about this voting-rights ruling is a raging controversy that goes unmentioned even though it hovers over every page: Arizona’s 2010 immigration law, over which the state is being sued by the Obama administration.

Like Prop 200, the state immigration statute does not contravene federal law; it supports the enforcement of federal immigration statutes. Yet the Obama Justice Department argues that the people of Arizona are powerless to enact their own protective measures because they have been preempted — not only by congressional statutes but by executive-branch enforcement policies. A likeminded, Clinton-appointed district judge bought the administration’s dubious preemption claims (I’ve discussed them here, here, and here). Thus, Arizona has appealed, and the case is now before the Ninth Circuit.

Preemption is the very doctrine to which the Ninth Circuit majority (i.e., Judge Ikuta and Justice O’Connor) resorted in the voting-rights case, so Tuesday’s ruling is now Circuit precedent. But the majority’s reasoning is absurd.

Put aside that NVRA expressly invites states to employ their own supplemental identification procedures. And let’s further assume, for argument’s sake, that the federal government has the power to preempt states from enacting voter-eligibility laws, even though conducting elections is traditionally a state function. In NVRA, Congress took pains to prohibit states from using a particular practice: any requirement that registration forms be notarized. Quite obviously, if it had been the federal government’s purpose to elbow the states completely out of the business of managing elections, there would have been no point in barring states from one specific practice. On the contrary, Congress would simply and clearly have said states were barred from enacting any additional identification procedures.

As Chief Judge Kozinski summarizes in rejecting the preemption claim:

The simple truth is that nothing in the NVRA clearly supersedes Arizona’s supplemental registration requirements. To get its way, the majority invents a broad rule of same-subject-matter preemption, arguing that the NVRA “addresses precisely the same topic as Proposition 200 in greater specificity, namely, the information that will be required to ensure that an applicant is eligible to vote in federal elections.” . . . But, as the majority acknowledges earlier in its opinion, the question under the Elections Clause isn’t whether the two laws address “the same topic,” but whether Arizona’s law “complements” rather than conflicts with “the congressional procedural scheme.” . . . There’s no conflict based on the text of the statutes. Arizona gladly accepts and uses the federal form, it just asks that voters also provide some proof of citizenship.

Analogously, the state’s immigration law endorses and complements federal law. It conflicts only with the Obama administration’s political decision not to enforce the law; there is no conflict with federal statutes.

Sadly, Justice O’Connor rejected Chief Judge Kozinski’s straightforward reasoning in the voting-rights case, implausibly concluding that whenever Leviathan deigns to act, the (formerly) sovereign states must stand down. So, here’s what Arizonans need to worry about: Their capacity to protect both the integrity of their elections and their security from the ravages of illegal immigration will come down to Justice Anthony Kennedy. The Supreme Court’s four-justice leftist bloc, now fortified by Obama appointees Elena Kagan and Sonia Sotomayor (the latter a longtime member of the National Council of La Raza), is undoubtedly poised to rule against the state. The four-justice conservative bloc is likely to endorse state laws that serve the stated goals of federal laws. That leaves the swing vote, Justice Kennedy.

It wasn’t so long ago that Justice Kennedy’s partner in swing was . . . Justice O’Connor.

– Andrew C. McCarthy, a senior fellow at the National Review Institute, is the author, most recently, of The Grand Jihad: How Islam and the Left Sabotage America.

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