Gonzales v. State of Arizona, 677 F.3d 383 (9th Cir. 2012)

Attempting to stem the tide of illegal aliens and their potential to cast votes in federal and state elections, the State of Arizona enacted modest statutory restrictions requiring evidence of citizenship from anyone in registering to vote and at the polling place itself.  The 9th Circuit (en banc) upheld the identification requirment at the polling place but not in completing the registration form.  Only the Supreme Court decision in Crawford v. Marion County Elections Board, 553 U.S. 181 (2008) compelled the court to allow evidnece of citizenship at the polling place.

Gonzales (en banc) is a split decision with a variety of results.  The majority of the court cited the Elections Clause of the Constitution, Art.I section 4, cl.1, as the governing authority.  This Clause permits the states to govern the mechanics of an election but reserves the right of the federal government to alter those conditions. Pursuant to the Election Clause, Congress enacted the Voting Rights Act (42 U.S.1973) authorizing the federal government to issue a “federal form” for voter registration, mandatorily imposed on the states, although each state could use its own form in compliance with the federal form.  According to the majority, presenting evidence of citizenship was not included in the federal form.

This conclusion of statutory construction of the VRA defies understanding for the average American.  To buy groceries, enter buildings, or purchase products, a person must display a drivers licence or similar identification. But in registering to vote it is unnecessary to require identification.

Whatever the result, the Gonzales case in another example of 9th Circuit duplicity. This case has been  before the 9th Circuit previously (and noted in this blog).  At one point, two 9th Circuit judges assigned to motion practice set aside a decision of the district court denying plaintiffs’ challenge to the Arizona statute without requiring any briefing or explanation; Gonzales v. Arizona, 485 F.3d 1041 (9th Cir. 2007.)  Reversed by the Supreme Court; Purcell v. Gonzales, 549 U.S.1 (2007). On remand, a 9th Circuit panel upheld the Arizona registration law and polling place statute. Another panel reversed the original 9th Circut panel decision and ignored the “rule of the case” disallowing reversal of one panel by a subsequent panel. In addition, the 9th Circuit panel ruled that the requirement for identification at registration violated the Election Clause and VRA; Gonzales . Arizona, 624 F.3d 1162 (9th Cir. 2010).

The instant case is a rehearing of that decision. The majority in a footnote rejects the 9th Circuit panel who wrote an exception to the “law of the case rule” in its decision. The en banc court continued to accept a different understanding of the rule in the footnote equally ambiguous.

Farrakhan v. Gregorie, 623 F.3d 990 (2010)

Seven years ago the Ninth Circuit, in pursuit of its legislative goals and collaterally undermining state law, held that the plaintiff’s Complaint alleging his voting rights had been abridged based on felony disenfranchisement under the Voting Rights Act (42 U.S.C. 1973 (2); VRA) could proceed to trial; Farrakhan v. Washington, 338 F.3d 1009 (9th Cir. 2003). The District Court had ruled on summary judgment in favor of defendant Washington state. In the Ninth Circuit reversal and remand, the three judge panel required the trial court to use a different legal test. Years passed while the District Court held hearings, ultimately issuing a second summary judgment in favor of defendants. On appeal, the three judge panel reversed the trial court ruling again; Farrakhan v. Gregorie, 590 F.3d 989 (9th Cir. 2006). The Ninth Circuit agreed to hear the case en banc. The court reversed the panel and affirmed the summary judgment. But the language of the opinion does not end the litigation. Here is the language of the decision affirming the summary judgment: “[. . . We hold that plaintiffs bringing a section 2 VRA challenge to a felon disenfranchisement law based on the operation of a state’s criminal justice system must at least show that the criminal justice system is infected by intentional discrimination or that the felon disenfranchisement law was enacted with such intent. Our ruling is limited to this narrow issue, and we express no view as to any of the other issues raised by the parties and amici. We also leave for another day the question of whether a plaintiff who has made the required showing would necessarily establish that a felon disenfranchisement law violates section 2.” If that language is unclear, a reading of the concurring and dissenting opinions is equally opaque. Three other Circuit Courts of Appeal have dismissed this absurd claim alleged in the instant ase. The Voting Rights Act has nothing to do with forbidding felons to vote. That plaintiffs could even state a claim is unimaginable. That the Ninth Circuit would waste time and money on this case confirms the commitment of this court to enacting judicial legislation, eviscerating state law, and entertaining a frivolous law suit.