Arizona Election Law: A Staple on U.S. Supreme Court Docket

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As nations around the world struggle transitioning to democracy, we may overlook that after more than two centuries we in the United States still grapple with our democratic system. Election law exists at the heart of our system of governance. If, as Justice Brandeis suggested, states are the laboratories of democracy, Arizona is conducting experiments in election law that are routinely garnering the attention of the highest court in the nation.

The U.S. Supreme Court just concluded its 2014-15 term, but not before upholding the right of Arizona’s voters to curtail the practice of partisan gerrymandering. Until 2000, the Arizona Constitution granted the Legislature the authority to draw congressional and state legislative lines, subject to a veto by the governor. In 2000, Arizona voters passed Proposition 106, a measure intended to strip the Legislature of redistricting authority and entrust it to a newly-created Arizona Independent Redistricting Commission, also known as the IRC.


PPC for Legal

Dissatisfied with new maps the IRC completed in 2012, the Arizona Legislature – i.e., the majority party – sued in federal district court arguing that taking congressional mapping away from the Legislature violated the elections clause of the U.S. Constitution. A divided three-judge district court panel disagreed and the Supreme Court, in a 5-4 decision, affirmed the panel’s decision. Justice Ginsberg, writing for the majority, noted that Arizona voters “sought to restore the core principle of republican government, namely, that the voters should choose their representatives, not the other way around. The Elections Clause does not hinder that endeavor.”

On the last day of its term, the U.S. Supreme Court accepted another redistricting case from Arizona to be argued next fall. Individual voters registered in Arizona challenged the constitutionality of the maps for state legislative districts adopted by the IRC in 2012. They allege the IRC overpopulated Republican-leaning districts and underpopulated Democrat-leaning districts in violation of the one person, one vote principle of the equal protection clause. After a divided threejudge U.S. district court panel upheld the lines, the plaintiffs pursued a direct appeal to the U.S. Supreme Court, which granted review.

The U.S. Supreme Court has been resolving election law questions from Arizona for some time. In 2004, Arizona voters approved Proposition 200. Among its provisions, Proposition 200 required satisfactory proof of citizenship to register to vote in Arizona and proof of identification to cast a ballot at the polls. After a two-judge motions panel of the Ninth Circuit enjoined these provisions shortly before the elections in 2006, the U.S. Supreme Court reversed and allowed Proposition 200 to stand for the 2006 election cycle.


Injury RX

Proposition 200 remained the subject of litigation for years after the 2006 elections, eventually landing on the Supreme Court’s docket a second time. In 2013, the Supreme Court ruled that the state-imposed requirement of evidence of citizenship, which is not required when using the federal voter registration form, violates the National Voter Registration Act. As a result, Arizona can no longer require proof of citizenship when an individual registers to vote using the federal voter registration form.

In 2011, the U.S. Supreme Court struck down portions of Arizona’s Citizens Clean Elections Act, the voter-approved measure adopted in 1998 that allowed qualified candidates to forego private contributions in exchange for clean elections funding. Among the first of its kind, the Clean Elections Act also allowed a candidate who participated in the program to receive matching funds when his or her privately-funded opponent raised or spent monies over amounts enumerated in the law. Matching funds also were allowed in response to independent expenditures against the participating candidate or in favor of his or her privately-funded opponent.

The U.S. Supreme Court ruled that the matching fund provisions impermissibly chilled First Amendment speech of privately-funded candidates and independent spenders alike. As a result, participating candidates today may only receive a pre-determined level of campaign funding, forcing them to weigh ahead of time whether that set amount will allow the candidate to mount a meaningful campaign against a privately-funded opponent in a primary or general election.

While Arizona may not receive the most attention from network anchors as they discuss the electoral map on election night, our state has been on the leading edge of some of the more impactful election law appellate decisions that define the contours of democracy in our nation. It is a trend consistent with Justice Brandeis’ observation, and that shows no signs of abating.


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Peter Silverman

Peter Silverman is of counsel at Mandel Young plc, where his practice focuses on political law, litigation and appeals. Peter previously served in the Solicitor General’s Office in Arizona, where he was legal counsel to then-Secretary of State Janice K. Brewer, the chief elections officer in Arizona. Peter also served several years as chief of staff and general counsel for the Democrats at the Arizona State Senate.

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