Feathered Bastard

Russell Pearce's Latest Loss: 9th Circuit Swats Down Racist Provision of Prop. 200

To borrow a phrase from that great modern philosopher Flavor Flav, when it comes to the 9th Circuit Court of Appeal's recent ruling on Prop 200, don't believe the hype.

Because hype, fake outrage and panic is basically what we're getting from right-wingers and Republican politicos about the court's striking down the part of Prop 200 that makes proving one's citizenship a prerequisite for voter registration.

"The decision is an outrage," Governor Jan Brewer and Secretary of State Ken Bennett announced in a joint statement, "and a slap in the face to all Arizonans who care about the integrity of their elections."

The statement continues, "Arizona voters have made their will crystal clear -- non-citizens do not have the right to vote."

Which is a classic straw man argument, because non-citizens didn't have the right to vote in federal elections before Prop 200, any more than they do after this ruling. As the decision itself points out, the National Voter Registration Act, which supersedes Prop 200, requires registrants to sign and attest under penalty of perjury that they are citizens.

The NVRA details federal penalties for voter fraud and voter registration fraud, making such activities punishable by up to five years in prison. Moreover, voting by an illegal alien is expressly forbidden by 18 USC 611, and punishable by up to a year in prison.

You see, Prop 200 had nothing to do with preventing non-citizens from voting. In fact, in the year or so before it was passed, it was widely reported that instances of voter fraud involving non-citizens were practically non-existent.

At the time, Maricopa County elections director Karen Osborne told the Arizona Republic that, "If we have one case a year, it's an amazement."

Even Steven Camorata, director of research for the nativist Center for Immigration Studies, admitted to the Republic that very few illegal immigrants actually attempt to vote for the obvious reason: They don't want to tip off authorities to the fact that they are here and undocumented.

Prop 200 also required proof of citizenship when applying for non-federally mandated programs. But the impact of that provision was minimal. Illegal immigrants were already prohibited from receiving most public assistance by the 1996 welfare reform signed into law by President Bill Clinton. 

Indeed, the nativist Federation for American Immigration Reform itself notes the following on its Web site:

"llegal immigrants are barred from the following federal public benefits: grants, contracts, loans, licenses, retirement, welfare, health, disability, public or assisted housing, post secondary education, food assistance, and unemployment benefits. States are barred from providing state or locally funded benefits to illegal immigrants unless a state law is enacted granting such authority."

Prop 200 was the product of fear, xenophobia and scapegoating. It received the support of nativist politicians such as Randy Pullen, currently state GOP chairman, and state Senator Russell Pearce (then in the House), who now calls himself the "architect" of the proposition.

Another supporter was self-described "ethnic separatist" Virginia Abernethy, chair of PAN's national advisory board. Her participation was so controversial that even FAIR asked her to step down.

Interestingly, a bi-partisan coalition of Republicans and Democrats opposed Prop 200, including U.S. Senators Jon Kyl and John McCain, then Congressman J.D. Hayworth, Governor Janet Napolitano, former Republican state Attorney General Grant Woods, and Mayor Phil Gordon.

One of the intended effects of Prop 200 was voter suppression, keeping the poor --  many of them Latinos -- from registering. In that sense, it was successful. It's estimated by Prop 200 opponents that 30,000 Arizonans were denied registration due to the law. Keeping Latinos from the polls was all part of the plan.

This was recognized by the 9th Circuit in its 2-to-1 decision, which included in the majority none other than former U.S. Supreme Court Justice Sandra Day O'Connor, who was sitting in as a member of the panel.

"The thrust of the NVRA," the 9th Circuit observed, "is to increase federal voter registration by streamlining the registration process. In this vein, the NVRA requires states to make registration opportunities widely available at the motor vehicle bureau."

The 9th Circuit found that, "Proposition 200 is not in harmony with the intent behind the NVRA, which is to reduce state-imposed obstacles to federal registration. It is indisputable that by requiring documentary proof of citizenship, Proposition 200 creates an additional state hurdle to registration."

You can read the decision, here.

Only the part of Prop 200 pertaining to showing "documentary proof of citizenship" was struck down. Folks are still required to show ID at the polls. The suggestion by some right-wing blogs that the court has opened the gate to massive voter fraud is complete hooey.

Right-wingers don't want eligible Latinos to register to vote. That's because they've spent so much of their time of late alienating Latinos by spewing nativist rhetoric. They want this state to continue to be dominated by a white, reactionary elite. 

Racist laws such Prop 200 and SB 1070 help them maintain their political hegemony by keeping the brown folk at bay. For the moment, that is. For the moment.

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Stephen is a former staff writer and columnist at Phoenix New Times.
Contact: Stephen Lemons