Maria Gonzalez v. State of Arizona

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MARIA M. GONZALEZ,; LUCIANO 

VALENCIA; THE INTER TRIBAL

COUNCIL OF ARIZONA, INC.;

ARIZONA ADVOCACY NETWORK;

STEVE M. GALLARDO; LEAGUE OF

UNITED LATIN AMERICAN CITIZENS

ARIZONA; LEAGUE OF WOMEN

VOTERS OF ARIZONA;

PEOPLE FOR THE AMERICAN WAY

FOUNDATION; HOPI TRIBE,

Plaintiffs, 

and

BERNIE ABEYTIA; ARIZONA HISPANIC

COMMUNITY FORUM; CHICANOS POR

LA CAUSA; FRIENDLY HOUSE; JESUS

GONZALEZ; DEBBIE LOPEZ;

SOUTHWEST VOTER REGISTRATION

EDUCATION PROJECT; VALLE DEL

SOL; PROJECT VOTE,

Plaintiffs- Appellants,



17617

17618 GONZALEZ v. ARIZONA



v.

STATE OF ARIZONA; JAN BREWER, in

her official capacity as Secretary

of State of Arizona; SHELLY

BAKER, La Paz County Recorder;

BERTA MANUZ, Greenlee County

Recorder; CANDACE OWENS,

Coconino County Recorder; LYNN

CONSTABLE, Yavapai County

Election Director; KELLY DASTRUP,

Navajo County Election Director;

LAURA DEAN-LYTLE, Pinal County

Recorder; JUDY DICKERSON,

Graham County Election Director;

DONNA HALE, La Paz County 

Election Director; SUSAN

HIGHTOWER MARLAR, Yuma County

Recorder; GILBERTO HOYOS, Pinal

County Election Director;

LAURETTE JUSTMAN, Navajo County

Recorder; PATTY HANSEN,

Coconino County Election

Director; CHRISTINE RHODES,

Cochise County Recorder; LINDA

HAUGHT ORTEGA, Gila County

Recorder; DIXIE MUNDY, Gila

County Election Director; BRAD

NELSON, Pima County Election

Director; KAREN OSBORNE,

Maricopa County Election

Director;



GONZALEZ v. ARIZONA 17619

YVONNE PEARSON, Greenlee County 

Election Director; PENNY PEW, No. 08-17094

Apache County Election Director; D.C. Nos.

HELEN PURCELL, Maricopa County 2:06-cv-01268-ROS

Recorder; F. ANN RODRIGUEZ, Pima

County Recorder,

 06-cv-01362-PCT-

JAT

Defendants-Appellees, 06-cv-01575-PHX-

YES ON PROPOSITION 200, EHC

Defendant-intervenor-Appellee,



MARIA M. GONZALEZ; BERNIE 

ABEYTIA; ARIZONA HISPANIC

COMMUNITY FORUM; CHICANOS POR

LA CAUSA; FRIENDLY HOUSE; JESUS

GONZALEZ; DEBBIE LOPEZ;



SOUTHWEST VOTER REGISTRATION

EDUCATION PROJECT; LUCIANO

VALENCIA; VALLE DEL SOL;

PEOPLE FOR THE AMERICAN WAY

FOUNDATION; PROJECT VOTE,

Plaintiffs,

and



17620 GONZALEZ v. ARIZONA

THE INTER TRIBAL COUNCIL OF 

ARIZONA, INC.; ARIZONA ADVOCACY

NETWORK; STEVE M. GALLARDO;

LEAGUE OF UNITED LATIN AMERICAN

CITIZENS ARIZONA; LEAGUE OF

WOMEN VOTERS OF ARIZONA; HOPI

TRIBE,

Plaintiffs-Appellants,

v.

STATE OF ARIZONA; JAN BREWER, in

her official capacity as Secretary

of State of Arizona; SHELLY

BAKER, La Paz County Recorder;

BERTA MANUZ, Greenlee County

Recorder; CANDACE OWENS, 

Coconino County Recorder; PATTY

HANSEN, Coconino County

Election Director; KELLY DASTRUP,

Navajo County Election Director;

LYNN CONSTABLE, Yavapai County

Election Director; LAURA DEAN-

LYTLE, Pinal County Recorder;

JUDY DICKERSON, Graham County

Election Director; DONNA HALE,

La Paz County Election Director;

SUSAN HIGHTOWER MARLAR, Yuma

County Recorder; GILBERTO

HOYOS, Pinal County Election

Director;



GONZALEZ v. ARIZONA 17621

LAURETTE JUSTMAN, Navajo County 

Recorder; CHRISTINE RHODES,

Cochise County Recorder; LINDA

HAUGHT ORTEGA, Gila County

Recorder; DIXIE MUNDY, Gila

County Election Director; BRAD

NELSON, Pima County Election

Director; KAREN OSBORNE, No. 08-17115

Maricopa County Election

Director; YVONNE PEARSON,

Greenlee County Election

 D.C. No.

2:06-cv-01268-ROS

Director; PENNY PEW, Apache OPINION

County Election Director; HELEN

PURCELL, Maricopa County

Recorder; F. ANN RODRIGUEZ, Pima

County Recorder,

Defendants-Appellees,

YES ON PROPOSITION 200,

Defendant-intervenor-Appellee.



Appeal from the United States District Court

for the District of Arizona

Roslyn O. Silver, District Judge, Presiding

Argued and Submitted

October 20, 2009—Tucson, Arizona

Filed October 26, 2010

17622 GONZALEZ v. ARIZONA

Before: Sandra Day O’Connor, Associate Justice,*

Alex Kozinski, Chief Judge, and Sandra S. Ikuta, Circuit

Judge.

Opinion by Judge Ikuta;

Dissent by Chief Judge Kozinski

*The Honorable Sandra Day O’Connor, Associate Justice of the United

States Supreme Court (Ret.), sitting by designation pursuant to 28 U.S.C.

§ 294(a).

17628 GONZALEZ v. ARIZONA

COUNSEL

Nina Perales, Mexican American Legal Defense and Educa-

tion Fund, San Antonio, Texas, for Plaintiffs/Appellants Jesus

M. Gonzalez, et al.

Jon M. Greenbaum, Lawyers Committee for Civil Rights

Under Law, Washington, D.C., for Plaintiffs/Appellants Inter

Tribal Council, et al.

Karen J. Hartman-Tellez, Phoenix, Arizona, for Plain-

tiffs/Appellants Inter-Tribal Council, et al.

Barbara A. Bailey, Assistant Attorney General, Phoenix, Ari-

zona, for Defendants/Appellees State of Arizona and Arizona

Secretary of State Ken Bennett.

GONZALEZ v. ARIZONA 17629

Mary R. O’Grady, Solicitor General, Phoenix, Arizona, for

Defendants/Appellees State of Arizona and Arizona Secretary

of State Ken Bennett.

Dennis Wilenchik, Wilenchik and Bartness, P.C., Phoenix,

Arizona, for Defendants/Appellees Shelly Baker, La Paz

County Recorder, et al.

Sam Hirsch, Jenner & Block LLP, Washington, D.C., on

behalf of Amicus Curiae The League of Women Voters of the

United States.

Kali N. Bracey, Jenner & Block LLP, Washington, D.C., on

behalf of Amicus Curiae The League of Women Voters of the

United States.

Jessica Ring Amunson, Jenner & Block LLP, Washington,

D.C., on behalf of Amicus Curiae The League of Women

Voters of the United States.

Barnaby W. Zall, Weinberg & Jacobs, LLP, Rockville, Mary-

land, on behalf of Amicus Curiae American Unity Legal

Defense Fund, Inc.

Charles E. Borden, O’Melveny & Myers LLP, Washington,

D.C., on behalf of Amicus Curiae National Association of

Latino Elected and Appointed Officials Educational Fund.

Joel M. Spector, Mountain States Legal Foundation, Lake-

wood, Colorado, on behalf of Amicus Curiae Mountain States

Legal Foundation.

Michael J. Reitz, Evergreen Freedom Foundation, Olympia,

Washington, on behalf of Amicus Curiae Evergreen Freedom

Foundation.

Brian D. Netter, Mayer Brown LLP, Washington, D.C., on

behalf of Amici Curiae Congressman Robert A. Brady, Con-

17630 GONZALEZ v. ARIZONA

gresswoman Zoe Lofgren, Congressman Charles A. Gonza-

lez, Congressman Raul M. Grijalva, and Congressman Jose E.

Serrano.

Richard A. Samp, Washington Legal Foundation, Washing-

ton, D.C., on behalf of Amici Curiae Protect Arizona Now,

Washington Legal Foundation, and Allied Educational Foun-

dation.

OPINION

IKUTA, Circuit Judge:

Proposition 200 requires prospective voters in Arizona to

present documentary proof of citizenship in order to register

to vote, Ariz. Rev. Stat. §§ 16-152, 16-166, and requires reg-

istered voters to present proof of identification in order to cast

a ballot at the polls, Ariz. Rev. Stat. § 16-159. This appeal

raises the questions whether Proposition 200 violates the Vot-

ing Rights Act § 2, 42 U.S.C. § 1973, is unconstitutional

under the Fourteenth or Twenty-fourth Amendments of the

Constitution, or is void as inconsistent with the National

Voter Registration Act (NVRA), 42 U.S.C. § 1973gg et seq.

We hold that the NVRA supersedes Proposition 200’s voter

registration procedures, and that Arizona’s documentary proof

of citizenship requirement for registration is therefore invalid.

We reject the remainder of Appellants’ arguments.

I

On November 2, 2004, Arizona voters passed a state initia-

tive, Proposition 200, which (upon proclamation of the Gov-

ernor) enacted various revisions to the state’s election laws.

Among other changes, Proposition 200 amended the proce-

dures for voter registration and for checking voters’ identifi-

cation at polling places in both state and federal elections.

GONZALEZ v. ARIZONA 17631

With respect to voter registration procedures, Proposition 200

amended two state statutes. First, it added the following

requirement to section 16-152 of the Arizona Revised stat-

utes, which lists the contents of the state voter registration

form:

The form used for the registration of electors shall

contain . . . [a] statement that the applicant shall sub-

mit evidence of United States citizenship with the

application and that the registrar shall reject the

application if no evidence of citizenship is attached.

Ariz. Rev. Stat. § 16-152(A)(23). Second, it amended section

16-166 of the Arizona Revised statutes to state that: “The

County Recorder shall reject any application for registration

that is not accompanied by satisfactory evidence of United

States citizenship,” and defined satisfactory evidence of citi-

zenship to include a driver’s license or similar identification

license issued by a motor vehicle agency, a birth certificate,

passport, naturalization documents or other specified immi-

gration documents, or specified cards relating to Native

American tribal status. See Ariz. Rev. Stat. § 16-166(F).1

1

Section 16-166(F) provides the following list of approved identifica-

tion documents:

1. The number of the applicant’s driver license or nonoperating

identification license issued after October 1, 1996 by the depart-

ment of transportation or the equivalent governmental agency of

another state within the United States if the agency indicates on

the applicant’s driver license or nonoperating identification

license that the person has provided satisfactory proof of United

States citizenship.

2. A legible photocopy of the applicant’s birth certificate that ver-

ifies citizenship to the satisfaction of the county recorder.

3. A legible photocopy of pertinent pages of the applicant’s

United States passport identifying the applicant and the appli-

cant’s passport number or presentation to the county recorder of

the applicant’s United States passport.

17632 GONZALEZ v. ARIZONA

Proposition 200 also addressed identification procedures at

polling places. Specifically, Proposition 200 amended section

16-579 of the Arizona Revised Statutes to provide that voters

“shall present one form of identification that bears the name,

address and photograph of the elector or two different forms

of identification that bear the name and address of the elec-

tor.” Ariz. Rev. Stat. § 16-579(A) (2004). The Secretary of

State, acting under statutory authority, see Ariz. Rev. Stat.

§ 16-452(A), (B), promulgated a procedure specifying the

“forms of identification” accepted under the statute, which

included photograph-bearing documents such as driver’s

licenses and non-photograph-bearing documents such as util-

ity bills or bank statements. In 2009, the state legislature

amended section 16-579 to codify that procedure.2

4. A presentation to the county recorder of the applicant’s United

States naturalization documents or the number of the certificate

of naturalization. If only the number of the certificate of natural-

ization is provided, the applicant shall not be included in the reg-

istration rolls until the number of the certificate of naturalization

is verified with the United States immigration and naturalization

service by the county recorder.

5. Other documents or methods of proof that are established pur-

suant to the immigration reform and control act of 1986.

6. The applicant’s Bureau of Indian Affairs card number, tribal

treaty card number or tribal enrollment number.

2

As of 2009, section 16-579(A)(1) provides:

(a) A valid form of identification that bears the photograph, name

and address of the elector that reasonably appears to be the same

as the name and address of the precinct register, including an Ari-

zona driver license, an Arizona nonoperating identification

license, a tribal enrollment card or other form of tribal identifica-

tion or a United States federal, state or local government issued

identification. Identification is deemed valid unless it can be

determined on its face that it has expired.

(b) Two different items that contain the name and address of the

elector that reasonably appears to be the same as the name and

address in the precinct register, including a utility bill, a bank or

GONZALEZ v. ARIZONA 17633

Shortly after Proposition 200’s passage, various plaintiffs

filed a complaint against Arizona to prevent the implementa-

tion of these changes. Two groups of plaintiffs are relevant to

this appeal. Jesus Gonzalez, representing individual Arizona

residents and organizational plaintiffs, claimed that Proposi-

tion 200 violated the NVRA (to the extent the Arizona enact-

ment regulated federal registration procedures), was a poll tax

under the Twenty-fourth Amendment, burdened naturalized

citizens in violation of the Equal Protection Clause of the

Fourteenth Amendment, and disparately impacted Latino vot-

ers and diluted Latino voting power in violation of § 2 of the

Voting Rights Act. The Inter Tribal Council of Arizona

(ITCA), a non-profit organization representing twenty Ari-

zona tribes, filed a complaint along with various other organiza-

tions,3 the Hopi Tribe, and Representative Steve Gallardo

from the Arizona State House of Representatives.4 Like Gon-

credit union statement that is dated within ninety days of the date

of the election, a valid Arizona vehicle registration, an Arizona

vehicle insurance card, Indian census card, tribal enrollment card

or other form of tribal identification, a property tax statement, a

recorder’s certificate, a voter registration card, a valid United

States federal, state or local government issued identification or

any mailing that is “official election material.” Identification is

deemed valid unless it can be determined on its face that it has

expired.

(c) A valid form of identification that bears the photograph, name

and address of the elector except that if the address on the identi-

fication does not reasonably appear to be the same as the address

in the precinct register or the identification is a valid United

States Military identification card or a valid United States pass-

port and does not bear an address, the identification must be

accompanied by one of the items listed in subdivision (b) of this

paragraph.

3

ITCA’s action was joined by the League of Women Voters of Arizona,

the League of United Latin American Citizens, the Arizona Advocacy

Network, and People For the American Way Foundation, as well as the

claimants listed above.

4

We refer to named plaintiffs Gonzalez and ITCA as representing all

plaintiffs associated in their respective actions. Where appropriate, we

17634 GONZALEZ v. ARIZONA

zalez, ITCA claimed that Proposition 200 violated the NVRA

(to the extent it regulated federal registration procedures), and

constituted a poll tax under the Twenty-fourth Amendment.

ITCA also separately claimed that Proposition 200 was a poll

tax under the Fourteenth Amendment. The district court con-

solidated Gonzalez and ITCA’s complaints.

Gonzalez and ITCA moved for a preliminary injunction to

enjoin application of Proposition 200’s requirements in the

2006 general election, Gonzalez v. Arizona (Gonzalez I), 485

F.3d 1041, 1047 (9th Cir. 2007). The district court denied

their motion, but a motions panel of this court reversed and

granted the injunction pending disposition of the merits on

appeal. Id. The Supreme Court vacated the injunction, and

remanded for clarification whether this court had given due

deference to the district court’s findings of fact. Id. at 1048;

see Purcell v. Gonzalez, 549 U.S. 1, 5 (2006). On remand,

Gonzalez and ITCA chose to pursue injunctive relief with

respect only to Proposition 200’s registration requirement.

Gonzalez I, 485 F.3d at 1048. The Gonzalez I panel thereafter

affirmed the district court’s denial of the preliminary injunc-

tion, holding that Proposition 200’s registration requirement

was not a poll tax, id. at 1049, and was not a violation of the

NVRA, id. at 1050-51. The district court subsequently

granted Arizona’s motion for summary judgment, relying on

Gonzalez I to rule that Proposition 200 was not an unconstitu-

tional poll tax and was not invalid as conflicting with the

NVRA. After trial, the district court resolved all other claims

in favor of Arizona, holding that Proposition 200 did not vio-

late § 2 of the Voting Rights Act and did not discriminate

against naturalized citizens or burden the fundamental right to

refer to Gonzalez and ITCA individually; however, because Gonzalez and

ITCA bring the same NVRA and Twenty-fourth Amendment claims, we

refer to both collectively as “Gonzalez” in the sections discussing these

two claims. We refer to the defendants collectively as “Arizona,” even

though Arizona county recorders were also named as defendants in these

consolidated actions.

GONZALEZ v. ARIZONA 17635

vote in violation of the Fourteenth Amendment’s Equal Pro-

tection Clause.

On appeal, Gonzalez and ITCA challenge the district

court’s rulings on the NVRA and the Twenty-fourth Amend-

ment. In addition, ITCA claims that Proposition 200 is an

invalid poll tax under the Fourteenth Amendment, and Gonza-

lez challenges the district court’s decisions on both the Voting

Rights Act claim and the equal protection challenge for dis-

crimination based on national origin and undue burden on the

fundamental right to vote. We consider each of these claims

in turn.

II

We begin with Gonzalez’s claim that Proposition 200’s

documentary proof of citizenship requirement for registration

is superseded by the NVRA’s comprehensive procedure for

registering voters in federal elections. Gonzalez argues that

the NVRA preempts Arizona law under both the Supremacy

Clause and the Elections Clause of the U.S. Constitution. In

response, Arizona relies on the Supremacy Clause’s “pre-

sumption against preemption,” Medtronic, Inc. v. Lohr, 518

U.S. 470, 485 (1996), to argue that the NVRA did not

expressly or impliedly preempt state voter registration laws.

Before addressing the parties’ arguments, we first consider

whether the framework of the Elections Clause or the

Supremacy Clause guides our analysis here.

A

[1] The Elections Clause establishes a unique relationship

between the state and federal governments. It provides:

The Times, Places, and Manner of holding Elections

for Senators and Representatives, shall be prescribed

in each State by the Legislature thereof; but Con-

gress may at any time by Law make or alter such

17636 GONZALEZ v. ARIZONA

Regulations, except as to the Place of chusing Sena-

tors.

U.S. Const. art, I, § 4, cl. 1. In a nutshell, the Elections Clause

gives state governments initial responsibility to regulate the

mechanics of national elections, “but only so far as Congress

declines to preempt state legislative choices.” Foster v. Love,

522 U.S. 67, 69 (1997).

The history of the Elections Clause reveals the reasoning

behind this unusual delegation of power. Under the Articles

of Confederation, the states had full authority to maintain,

appoint, or recall congressional delegates.5 At the Philadel-

phia Convention, delegates expressed concern that, if left

unfettered, states could use this power to frustrate the creation

of the national government, most obviously by neglecting to

hold federal elections.6 The Framers decided that Congress

should be given the authority to oversee the states’ procedures

related to national elections as a safeguard against potential

state abuse. See U.S. Term Limits, Inc. v. Thornton, 514 U.S.

779, 808-09 (1995); see also The Federalist No. 59 (Alexan-

der Hamilton) (Ron P. Fairfield 1981 ed., 2d ed.) (explaining

that “[n]othing can be more evident, than that an exclusive

power of regulating elections for the national government, in

the hands of the State legislatures, would leave the existence

of the Union entirely at their mercy”). Over the protest of

5

See Articles of Confederation of 1781, art. V (“[D]elegates shall be

annually appointed in such manner as the legislature of each state shall

direct . . . with a power, reserved to each state, to recall its delegates . . . .

Each state shall maintain its own delegates in a meeting of the states

. . . .”).

6

See 1 The Debates in the Several State Conventions on the Adoption

of the Federal Constitution as Recommended by the General Convention

at Philadelphia in 1787 Together with the Journal of the Federal Conven-

tion, Luther Martin’s Letter, Yates’s Minutes, Congressional Opinions,

Virginia & Kentucky Resolutions of ’98-’99, and Other Illustrations of the

Constitution 225 (photo. reprint 1987) (Jonathan Elliot ed., 2d ed. 1901)

[hereinafter Elliot’s Debates].

GONZALEZ v. ARIZONA 17637

some Southern delegates,7 the Framers approved language

giving Congress power to “make or alter” the states’ regula-

tions. See 5 Elliot’s Debates 401-02 (statement of James Mad-

ison). As subsequently modified to give Congress supervisory

power, this language became the Elections Clause.8

As indicated by this historical context, the Elections Clause

empowers both the federal and state governments to enact

laws governing the mechanics of federal elections. By its

plain language, the Clause delegates default authority to the

states to prescribe the “Times, Places, and Manner” of con-

ducting national elections in the first instance. U.S. Const. art.

I, § 4, cl. 1. The states would not possess this authority but for

the Clause: As the Supreme Court has noted, the authority to

regulate national elections “aris[es] from the Constitution

itself,” and is therefore “not a reserved power of the States.”

U.S. Term Limits, 514 U.S. at 805. Because federal elections

did not come into being until the federal government was

formed, individual states have no inherent or preexisting

authority over this domain. See d. at 804-05.

While the states have default responsibility over the

mechanics of federal elections, because Congress “may at any

time by Law make or alter such Regulations” passed by the

state, U.S. Const. art. I, § 4, cl. 1, power over federal election

7

South Carolinian delegates Charles Pinckney and John Rutledge

moved to exclude the language giving Congress this supervisory power

over the states. 5 Elliot’s Debates at 401. “The states, they contended,

could and must be relied on” to regulate legislative appointments. Id. See

also Vieth v. Jubelirer, 541 U.S. 267, 275-76 (2004).

8

Alexander Hamilton described the need for congressional oversight of

the states as follows: “[The Framers] have submitted the regulation of

elections for the federal government, in the first instance, to the local

administrations; which, in ordinary cases, and when no improper views

prevail, may be both more convenient and more satisfactory; but they have

reserved to the national authority a right to interpose, whenever extraordi-

nary circumstances might render that interposition necessary to its safety.”

The Federalist No. 59.

17638 GONZALEZ v. ARIZONA

procedures has been described by the Supreme Court as ulti-

mately “committed to the exclusive control of Congress.”

Colgrove v. Green, 328 U.S. 549, 554 (1946).9 Accordingly,

“the power of Congress over the subject is paramount. It may

be exercised as and when Congress sees fit to exercise it.

When exercised, the action of Congress, so far as it extends

and conflicts with the regulations of the State, necessarily

supersedes them.” Ex Parte Siebold, 100 U.S. 371, 384

(1879); see also Foster, 522 U.S. at 69.

Not only does the Elections Clause grant Congress author-

ity to supersede state election laws, but we have interpreted

the Clause to require states to affirmatively implement Con-

gress’s superseding regulations, without compensation from

the federal government. Voting Rights Coalition v. Wilson, 60

F.3d 1411, 1415 (9th Cir. 1995). Put another way, the Elec-

tions Clause gives Congress the power to “conscript state

agencies to carry out [federal] voter” procedures in accor-

dance with Congress’s own mandates. Id. This makes the

Clause unique among virtually all other provisions in the

Constitution, which “mostly tell [states] not what they must

do but what they can or cannot do.” ACORN v. Edgar, 56

F.3d 791, 794 (7th Cir. 1995).

[2] In sum, a state’s role in the creation and implementa-

tion of federal election procedures under the Elections Clause

9

The Court has generally construed Congress’s exclusive authority

under the Elections Clause expansively. See, e.g., United States v. Gra-

dwell, 243 U.S. 476, 483 (1917) (authority over federal election process,

from registration to certification of results); United States v. Mosley, 238

U.S. 383, 386 (1915) (authority to enforce the right of an eligible voter to

cast ballot and have ballot counted); Ex Parte Coy, 127 U.S. 731, 752-53

(1888) (authority to regulate conduct at any election coinciding with fed-

eral contest); Ex parte Yarbrough (The Ku Klux Cases), 110 U.S. 651, 662

(1884) (authority to make additional laws for free, pure, and safe exercise

of right to vote); Ex parte Clarke, 100 U.S. 399, 404 (1879) (authority to

punish state election officers for violation of state duties vis-a-vis Con-

gressional elections).

GONZALEZ v. ARIZONA 17639

is to administer the elections through its own procedures until

Congress deems otherwise; if and when Congress acts, the

states are obligated to conform to and carry out whatever pro-

cedures Congress requires. See Foster, 522 U.S. at 69.

As should be clear from this overview, the Elections Clause

operates quite differently from the Supremacy Clause. The

Supremacy Clause provides that the law of the United States

“shall be the supreme Law of the Land; . . . any Thing in the

Constitution or Laws of any state to the Contrary notwith-

standing.” U.S. Const. art. VI, cl. 2. “The primary function of

the Supremacy Clause is to define the relationship between

state and federal law. It is essentially a power conferring pro-

vision, one that allocates authority between the national and

state governments.” White Mountain Apache Tribe v. Wil-

liams, 810 F.2d 844, 848 (9th Cir. 1985).

[3] In our system of dual sovereignty, when deciding under

the Supremacy Clause whether a particular state law is pre-

empted by a federal enactment, courts strive to maintain the

“delicate balance” between the States and the Federal Govern-

ment. Gregory v. Ashcroft, 501 U.S. 452, 460 (1991); see

Medtronic, 518 U.S. at 485. Courts thus endeavor to preserve

the states’ authority when possible, see Gregory, 501 U.S. at

460, particularly where a congressional enactment threatens to

preempt a state law regulating matters of its residents’ health

and safety, an area to which “[s]tates traditionally have had

great latitude . . . to legislate” as a matter of local concern,

Metro. Life Ins. Co. v. Massachusetts, 471 U.S. 724, 756

(1985). See also Altria Group, Inc. v. Good, 129 S. Ct. 538,

543 (2008); Medtronic, 518 U.S. at 485. Only where no rec-

onciliation between state and federal enactments may be

reached do courts hold that Congress’s enactments must pre-

vail, e.g., Altria, 129 S. Ct. at 543, with the understanding,

however, that “the individual States . . . retain [their] indepen-

dent and uncontrollable authority . . . to any extent” that Con-

gress has not interfered, see The Federalist No. 33 (Alexander

Hamilton).

17640 GONZALEZ v. ARIZONA

In light of the different history and purpose of these consti-

tutional provisions, it is not surprising that the preemption

analysis for the Supremacy Clause differs from that of the

Elections Clause. In its Supremacy Clause jurisprudence, the

Supreme Court has crafted special guidelines to assist courts

in striking the correct balance between federal and state

power. First, in examining claims that a federal law preempts

a state statute through the Supremacy Clause, the Supreme

Court instructs courts to begin with a “presumption against

preemption.” E.g., Altria Group, 129 S. Ct. at 543; Medtronic,

518 U.S. at 485. This principle applies because, as the Court

has recently noted, “respect for the States as independent sov-

ereigns in our federal system leads us to assume that Congress

does not cavalierly pre-empt state-law causes of action.”

Wyeth v. Levine, 129 S. Ct. 1187, 1195 n.3 (2009) (internal

quotation marks omitted). Second, the Court has adopted a

“plain statement rule,” holding that a federal statute preempts

a state statute only when it is the “clear and manifest purpose

of Congress” to do so. Gregory, 501 U.S. at 461 (internal

quotation marks omitted); see also Cipollone v. Liggett

Group, Inc., 505 U.S. 504, 516 (1992) (“Consideration of

issues arising under the Supremacy Clause starts with the

assumption that the historic police powers of the States are

not to be superseded by . . . Federal Act, unless that is the

clear and manifest purpose of Congress.”) (internal quotation

marks and brackets omitted)). Like the presumption against

preemption, this rule “is nothing more than an acknowledg-

ment that the States retain substantial sovereign powers under

our constitutional scheme, powers with which Congress does

not readily interfere.” Gregory, 501 U.S. at 461.

[4] This jurisprudence, which is motivated in large part by

federalism concerns, is unsuited to analyzing the preemptive

effect of a congressional enactment under the Elections

Clause. Because the states’ sole power over national election

procedures is that delegated by the Elections Clause, U.S.

Term Limits, 514 U.S. at 805, and states otherwise have no

reserved authority over this domain, id., courts deciding

GONZALEZ v. ARIZONA 17641

issues raised under the Elections Clause need not strike any

balance between competing sovereigns. Instead, the Elections

Clause, as a standalone preemption provision, establishes its

own balance, resolving all conflicts in favor of the federal

government. See, e.g., Foster, 522 U.S. at 71 (stating that “the

Constitution explicitly gives Congress the final say” on mat-

ters related to federal election procedures). For this reason,

the “presumption against preemption” and “plain statement

rule” that guide courts’ analysis of preemption under the

Supremacy Clause are not transferable to the Elections Clause

context. Cf. Gregory, 501 U.S. at 460-61. Indeed, the

Supreme Court has suggested as much. In Foster, the Court

upheld the Fifth Circuit’s determination that a state election

law was voided by a federal election law; however, instead of

adopting the Fifth Circuit’s Supremacy Clause analysis, the

Supreme Court analyzed the claim under the Elections

Clause, without ever mentioning any presumption against pre-

emption or requirement of a plain statement of congressional

intent to preempt. See Foster, 522 U.S. 67; Love v. Foster, 90

F.3d 1026 (5th Cir. 1996), cert. granted in 522 U.S. 67. In

fact, our survey of Supreme Court opinions deciding issues

under the Elections Clause reveals no case where the Court

relied on or even discussed Supremacy Clause principles.

[5] Because the Elections Clause empowered Congress to

enact the NVRA, Wilson, 60 F.3d at 1414, the preemption

analysis under that Clause is applicable here. We begin our

analysis as the Court did in Foster, guided by Election Clause

preemption principles. Accord Harkless v. Brunner, 545 F.3d

445, 454 (6th Cir. 2008) (declining to apply Supremacy

Clause preemption principles in analyzing the preemptive

effect of the NVRA).

B

The Supreme Court first explained the principles of Elec-

tions Clause preemption in Siebold, 100 U.S. 371. In that

case, the Court likened the relationship between the laws

17642 GONZALEZ v. ARIZONA

passed by Congress and the state legislatures under the Elec-

tions Clause to “prior and subsequent enactments of the same

legislature.” Id. at 384. “The State laws which Congress sees

no occasion to alter, but which it allows to stand, are in effect

adopted by Congress.” Id. at 388. By this token, just as a sub-

sequent legislature is not required to make an “entirely new

set” of laws when modifying those of a prior legislature, nei-

ther is Congress required to wholly take over the regulation

of federal election procedures when choosing to “make or

alter” certain of the states’ rules. Id. at 384. According to the

Court, there is no “intrinsic difficulty in such co-operation”

between the state and national legislatures because the two

governments do not possess an “equality of jurisdiction” with

respect to federal elections. Id. at 392. While Congress may

override state enactments, the state may not vitiate an action

of Congress by adopting a system of regulations to undo con-

gressional efforts. See id. at 393, 397. In all instances, “the

laws of the State, in so far as they are inconsistent with the

laws of Congress on the same subject, cease to have effect as

laws.” Id. at 397.

Over a century later, the Supreme Court clarified what con-

stitutes a conflict under the Elections Clause’s single system

of federal election procedures. See Foster, 522 U.S. 67. Fos-

ter considered whether a congressional enactment superseded

a Louisiana statute regulating the same federal election proce-

dure. Id. at 68-69. Specifically, sections 1 and 7 of Title 7 of

the U.S. Code established the date for federal congressional

elections as the Tuesday after the first Monday in November.

Id. at 69-70. A Louisiana statute established an open primary

in October where state voters could elect the candidate who

would fill the offices of United States Senator and Represen-

tative. Id. at 70. Only if the open primary failed to result in

a majority candidate would a run off election between the top

two candidates be held on Congress’s specified election day.

Id. In response to a challenge by Louisiana voters, the Court

unanimously held that the state and federal acts conflicted,

and thus invalidated the Louisiana law. Id. at 74.

GONZALEZ v. ARIZONA 17643

In concluding that Congress’s power to preclude the state

statute was beyond argument, the Court rejected the state’s

claim that its statute and the federal enactment could be con-

strued harmoniously. Id. at 73. Louisiana asserted that “the

open primary system concern[ed] only the ‘manner’ of elect-

ing federal officials, not the ‘time’ at which the elections will

take place.” Id. at 72. The Court discarded this “attempt to

draw this time-manner line” as “merely wordplay” and an

“imaginative characterization” of the statutes. Id. at 72-73.

Building upon the principles from Siebold, the Court declined

to adopt a strained interpretation of the statutes to reconcile a

potential disagreement. See id. Rather, the Court emphasized

Congress’s unique plenary authority not only to supplant state

rules but to conscript states to carry out federal enactments

under the Elections Clause, and found it enough that, under a

natural reading, the state and federal enactments addressed the

same procedures and were in conflict. Id. (noting that the

Louisiana’s regulation addressed the timing of elections

“quite as obviously” as the federal one). Refusing to “par[e]

[the statute] down to the definitional bone,” the Court held

that the state enactment was void. Id. at 72, 74.

[6] Reading Siebold and Foster together, we derive the fol-

lowing approach for considering whether federal enactments

under the Elections Clause displace a state’s procedures for

conducting federal elections. First, as suggested in Siebold,

we consider the state and federal laws as if they comprise a

single system of federal election procedures. Siebold, 100

U.S. at 384. If the state law complements the congressional

procedural scheme, we treat it as if it were adopted by Con-

gress as part of that scheme. See id. If Congress addressed the

same subject as the state law, we consider whether the federal

act has superseded the state act, based on a natural reading of

the two laws and viewing the federal act as if it were a subse-

quent enactment by the same legislature. Foster, 522 U.S. at

74. With this approach in mind, we consider whether the

NVRA and Proposition 200 operate harmoniously in a single

procedural scheme for federal voter registration.

17644 GONZALEZ v. ARIZONA

C

To resolve the question here, we must first understand both

the federal and state voter registration procedures at issue. We

earlier explained the changes to Arizona’s registration statutes

under Proposition 200, which incorporated a requirement that

registrants submit documentary proof of citizenship in order

to register to vote. See supra Part I; Ariz. Rev. Stat. §§ 16-

152, 16-166. Our next step is to examine the scope of the

NVRA.

1

Congress enacted the NVRA because, among other rea-

sons, it determined that “discriminatory and unfair registration

laws and procedures can have a direct and damaging effect on

voter participation in elections for Federal office and dispro-

portionately harm voter participation by various groups,

including racial minorities.” 42 U.S.C. § 1973gg(a).

Initially, Congress attempted to address this problem by

enacting legislation that permitted the government and pro-

spective voters to challenge discriminatory practices in the

courts. See South Carolina v. Katzenbach, 383 U.S. 301, 313

(1966) (discussing the Civil Rights Act of 1957, which “au-

thorized the Attorney General to seek injunctions against pub-

lic and private interference with the right to vote on racial

grounds,” and the Civil Rights Act of 1964, which “expedited

the hearing of voting cases before three-judge courts and out-

lawed some of the tactics” used to disqualify African Ameri-

cans from voting in federal elections).10 The elimination of

discriminatory voting practices through litigation, however,

was “slow and expensive, and [meanwhile] the States were

creative in contriving new rules to continue violating the Fif-

10

Neither of these Acts were passed under the substantive authority of

the Elections Clause, and therefore the Elections Clause analysis is not

applicable to cases considering these enactments.

GONZALEZ v. ARIZONA 17645

teenth [and Fourteenth] Amendment[s] in the face of adverse

federal court decrees.” Nw. Austin. Mun. Utility Dis. No. One

v. Holder (NAMUDNO), 129 S. Ct. 2504, 2508-09 (2009)

(internal quotations marks omitted). To limit voter registra-

tion, some local officials defied court edicts or “simply closed

their registration offices to freeze the voting rolls.” Katzen-

bach, 383 U.S. at 314. Congress’s attempts to “authoriz[e]

registration by federal officers . . . had little impact on local

maladministration.” Id. Nearly a century after the Civil War,

registration of eligible African American voters in some states

was still fifty percentage points lower than that of eligible

white voters. Shaw v. Reno, 509 U.S. 630, 640 (1993).

Congress tried a different approach to addressing this prob-

lem by passing the Voting Rights Act of 1965 (VRA), Pub.

L. No. 89-110, 79 Stat. 437 (codified at 42 U.S.C. § 1973 et

seq.). The VRA, enacted under the authority of Congress’s

Fifteenth Amendment enforcement powers, is “a complex

scheme of stringent remedies aimed at areas where voting dis-

crimination has been most flagrant.” Katzenbach, 383 U.S. at

308, 315. As enacted, the VRA suspended the use of literacy

tests, § 4(a)-(d), required covered jurisdictions to pre-clear

changes in voting procedures and practices, § 5, and provided

for the appointment of federal examiners to assist in register-

ing qualified citizens to vote, §§ 6, 7, 9, 13. Section 2 of the

VRA also permits actions to be brought to void voting qualifi-

cations or prerequisites “resulting in the denial or abridgement

of the right of any citizen of the United States to vote on

account or race or color.”

[7] While considered on the whole to be a successful tool

in eliminating the more obvious discriminatory voting proce-

dures, see NAMUDNO, 129 S.Ct. at 2511, the VRA failed to

address voter registration procedures, which imposed a “com-

plicated maze of local laws and procedures, in some cases as

restrictive as the out-lawed practices, through which eligible

citizens had to navigate in order to exercise their right to

vote,” H.R. Rep. No. 103-9, at 3 (1993). Between 1988 and

17646 GONZALEZ v. ARIZONA

1993, Congress held a series of hearings focused on reforming

the voter registration process to address the increasingly

pressing issue of low voter turnout in federal elections. Con-

don v. Reno, 913 F. Supp. 946, 949 n.2 (D.S.C. 1995). Con-

gress found that, while over eighty percent of registered

citizens voted in Presidential elections, only sixty percent of

eligible voters were registered. H.R. Rep. No. 103-9, at 3.

Public opinion polls showed that the primary reason eligible

citizens were not voting was the failure to register. Id. While

acknowledging that this failure was attributable to many fac-

tors outside its control, Congress enacted the NVRA to

address the problems within its control, namely those barriers

to registration that were imposed by state governments. See

id. Under the Elections Clause, Congress had the power “to

provide a complete code for congressional elections, not only

as to times and places, but in relation to . . . registration.” Smi-

ley v. Holm, 285 U.S. 355, 366 (1932). Through this author-

ity, Congress enacted the NVRA to remove these obstacles

and “to provide simplified systems for registering to vote in

federal elections.” Young v. Fordice, 520 U.S. 273, 275

(1997) (emphasis omitted).

2

The NVRA is a comprehensive scheme enacting three sig-

nificant changes to federal election registration procedures

nationwide: (1) it creates a standard “Federal Form”

(described below) for registering federal voters; (2) it requires

states to establish procedures to register voters for federal

elections according to three prescribed methods; and (3) it

regulates maintenance of voting lists. See 42 U.S.C. § 1973gg

et seq.

Section 1973gg, setting forth the act’s “Findings and Pur-

poses,” provides an overview of the NVRA. The “findings”

subsection, § 1973gg(a), articulates Congress’s intent to pro-

mote voter registration and to address “discriminatory and

unfair registration laws.” The “purposes” subsection,

GONZALEZ v. ARIZONA 17647

§ 1973gg(b), provides a preview of the operative sections of

the NVRA, listing Congress’s goals of increasing voter regis-

tration and enhancing the participation of eligible voters

(relating to Sections 2 through 5, § 1973gg-2-§ 1973gg-5) and

the goals of ensuring the accuracy of registration rolls and

protecting the integrity of the electoral process (relating to

Section 6, § 1973gg-6).

Section 2, § 1973gg-2, sets forth the scope and applicability

of the act.11 Each state (except for those that do not require

voter registration as a prerequisite to voting) “shall establish

procedures to register” voters for federal elections according

to the NVRA’s three methods “notwithstanding any other

Federal or State law, in addition to any other method of voter

registration provided for under State law.” § 1973gg-2(a).

The first method of voter registration is described in Sec-

tion 3, § 1973gg-3. This section provides that any application

for a driver’s license submitted to a state motor vehicle

authority “shall serve as an application for voter registration

with respect to elections for Federal office unless the appli-

cant fails to sign the voter registration application.” § 1973gg-

3(a)(1). This provision earned the statute its informal title, the

“Motor Voter Law.” United States v. Lara, 181 F.3d 183, 191

(1st Cir. 1999). Under the statute, the voter registration form

must be part of the driver’s license application, and generally

“may not require any information that duplicates information

required in the driver’s license portion of the form.”

§ 1973gg-3(c)(2)(A). Section 3 also limits the content of the

form to the minimum necessary to prevent duplicate voter

registrations and to enable the state to assess the eligibility of

the applicant.12

11

Section 1 of the NVRA defines terms used in the statute. § 1973gg-1.

12

Section 1973gg-3(c) provides, in pertinent part:

The combined motor vehicle-voter registration form:

(B) may require only the minimum amount of information neces-

sary to—

17648 GONZALEZ v. ARIZONA

The second method of voter registration, set forth in Sec-

tion 4, § 1973gg-4, requires states to register federal voters by

mail using the Federal Form. Section 4(a)(1) states that

“[e]ach State shall accept and use the [Federal Form] for the

registration of voters in elections for Federal office.” Section

4(a)(2) provides that, “[i]n addition to accepting and using

[the Federal Form], a State may develop and use a mail voter

registration form that meets all the criteria” of the Federal

Form. Section 4(b) discusses the availability of the Federal

Form and the state equivalent: States must make the mail reg-

istration form “available for distribution through governmen-

tal and private entities, with particular emphasis on making

them available for organized voter registration programs.”

§ 1973gg-4(b). With certain exceptions not pertinent here, the

statute permits states to require citizens who register by mail

to vote in person if they have not previously voted in the juris-

diction. § 1973gg-4(c).

The third method of federal voter registration is mandated

by Section 5, § 1973gg-5, which requires states to designate

certain state offices for voter registration. Targeting “the poor

and persons with disabilities who do not have driver’s

licenses and will not come into contact with” motor vehicle

agencies, H.R. Rep. No. 103-55, at 19 (1993), as reprinted in

1993 U.S.C.C.A.N. 140, 144, this section requires states to

(I) prevent duplicative voter registrations; and

(ii) enable State election officials to assess the eligibility of the

applicant and to administer voter registration and other parts of

the election process;

(C) shall include a statement that—

(I) states each eligibility requirement (including citizenship)

(ii) contains an attestation that the applicant meets each such

requirement; and

(iii) requires the signature of the applicant under penalty of perju-

ry[.]

GONZALEZ v. ARIZONA 17649

provide for federal registration at “all offices in the State that

provide public assistance,” § 1973gg-5(a)(2)(A), and “all

offices in the State that provide State-funded programs pri-

marily engaged in providing services to persons with disabili-

ties,” § 1973gg-5(a)(2)(B). The state may also designate

additional government offices such as “public libraries, public

schools, offices of city and county clerks (including marriage

license bureaus), fishing and hunting license bureaus, govern-

ment revenue offices, unemployment compensation offices,

and [other offices] that provides services to persons with dis-

abilities” as voter registration agencies. § 1973gg-5(a)(3).

Section 5 requires each designated agency to provide appli-

cants with the Federal Form, help them complete it, and man-

dates “[a]cceptance of completed voter registration

application forms for transmittal to the appropriate State elec-

tion official.” § 1973gg-5(a)(4)(A). As in Section 4, the desig-

nated state agency may also distribute a state form, but only

“if it is equivalent” to the Federal Form. § 1973gg-

5(a)(6)(A)(ii).

Section 6, § 1973gg-6, establishes procedures to enhance

the accuracy and integrity of the official voting lists both by

removing ineligible voters and preventing the mistaken

removal of eligible voters.

Section 7, § 1973gg-7, describes how the federal and state

governments will determine the contents of the Federal Form,

and otherwise coordinate administration of the NVRA’s pro-

cedures. This section delegates the creation of the Federal

Form to the federal Election Assistance Commission (EAC).13

§ 1973gg-7(a). The section requires the EAC to work “in con-

13

The responsibilities of the EAC were formerly held by the Federal

Election Commission (FEC). When Congress passed the Help America

Vote Act (HAVA), Pub. L. No. 107-252, 116 Stat. 1666, in 2002, it cre-

ated the EAC, 42 U.S.C. § 15321, which eventually absorbed the FEC’s

duties under the NVRA.

17650 GONZALEZ v. ARIZONA

sultation with the chief election officers of the States” in craft-

ing the Form’s contents. Id.

Section 7 also sets out parameters for what the Federal

Form may, shall, and cannot include.14 Among other things,

the Federal Form “may require only such identifying informa-

tion” as is necessary to allow the state to determine the eligi-

bility of the applicant and to administer the voter registration

and election process. § 1973gg-7(b)(1). The Federal Form

14

The Federal Form:

(1) may require only such identifying information (including the

signature of the applicant) and other information (including data

relating to previous registration by the applicant), as is necessary

to enable the appropriate State election official to assess the eligi-

bility of the applicant and to administer voter registration and

other parts of the election process;

(2) shall include a statement that—

(A) specifies each eligibility requirement (including citizenship);

(B) contains an attestation that the applicant meets each such

requirement; and

(C) requires the signature of the applicant, under penalty of per-

jury;

(3) may not include any requirement for notarization or other for-

mal authentication; and

(4) shall include, in print that is identical to that used in the attes-

tation portion of the application—

(I) [voter eligibility requirements and penalties for false applica-

tions, § 1973gg-6(a)(5)]

(ii) a statement that, if an applicant declines to register to vote,

the fact that the applicant has declined to register will remain

confidential and will be used only for voter registration purposes;

and

(iii) a statement that if an applicant does not register to vote, the

office at which the applicant submits a voter registration applica-

tion will remain confidential and will be used only for voter reg-

istration purposes.

§ 1973gg-7(b).

GONZALEZ v. ARIZONA 17651

must inform the applicant as to every eligibility requirement

“including citizenship” and require the applicant to attest,

under penalty of perjury, that the applicant meets each

requirement. § 1973gg-7(b)(2). The form “may not include

any requirement for notarization or other formal authentica-

tion.” § 1973gg-7(b)(3).

Section 8, § 1973gg-8, requires states to designate an offi-

cer to serve as chief election official. Section 9, § 1973gg-9,

regulates civil enforcement of the NVRA’s provisions and

designates a private right of action under the statute. Section

10, § 1973gg-10, sets forth the criminal penalties for election

fraud or other non-compliance with the statute.

As this overview indicates, the thrust of the NVRA is to

increase federal voter registration by streamlining the registra-

tion process. In this vein, the NVRA requires states to make

registration opportunities widely available, at the motor vehi-

cle bureau, § 1973gg-3, by mail, § 1973gg-4, and at public

assistance, disability service, and other designated state

offices, § 1973gg-5. Along with increasing the opportunities

for registration, the NVRA eases the burdens of completing

registration forms. At the motor vehicle authority, for

instance, voter registration must be included as part of the

driver’s license application and the combined form cannot

require duplicative information. § 1973gg-3(c)(2)(A). The

NVRA also regulates the Federal Form to meet its goal of

eliminating obstacles to voter registration. See

§ 1973gg(b)(1)-(2). Thus, the NVRA forbids the EAC from

including any identifying information beyond that “necessary

to enable the appropriate State election official to assess the

eligibility of the applicant and to administer voter registration

and other parts of the election process.” § 1973gg-7(b)(1). In

sum, as every court to have considered the act has concluded,

the NVRA’s central purpose is to increase voter registration

by streamlining voter registration procedures. See, e.g., Hark-

less, 545 F.3d at 449; Welker v. Clarke, 239 F.3d 596, 598-99

(3d Cir. 2001) (“One of the NVRA’s central purposes was to

17652 GONZALEZ v. ARIZONA

dramatically expand opportunities for voter registration

. . . .”); Disabled in Action of Metro. N.Y. v. Hammons, 202

F.3d 110, 114 (2d Cir. 2000); Lara, 181 F.3d at 192 (“The

NVRA is addressed to heightening overall popular participa-

tion in federal elections . . . .”); Nat’l Coal. for Students with

Disabilities Educ. & Legal Def. Fund v. Allen, 152 F.3d 283,

285 (4th Cir. 1998) (“Congress passed the NVRA . . . to

encourage increased voter registration for elections involving

federal offices” and “to make it easier to register to vote.”);

ACORN v. Miller, 129 F.3d 833, 835 (6th Cir. 1997) (“In an

attempt to reinforce the right of qualified citizens to vote by

reducing the restrictive nature of voter registration require-

ments, Congress passed the [NVRA].”).

3

Turning now to our Elections Clause analysis, we consider

whether Proposition 200’s documentary proof of citizenship

requirement is superseded by the NVRA. As indicated by the

approach derived from Siebold and Foster, see supra Part

II.B, we consider the state and federal enactments together as

if they composed a single system of federal election proce-

dures. Next, we consider whether, read naturally, the NVRA

provisions complement Proposition 200’s voter registration

requirements or supersede them. If a natural interpretation of

the language of the two enactments leads to the conclusion

that the state law does not function consistently and harmoni-

ously with the overriding federal scheme, then it is replaced

by the federal statute.

[8] Applying this framework, we conclude that Proposition

200’s documentary proof of citizenship requirement conflicts

with the NVRA’s text, structure, and purpose. First, 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 fed-

eral elections. See Foster, 522 U.S. at 73. Section 7 of the

NVRA, § 1973gg-7, both spells out the information that an

GONZALEZ v. ARIZONA 17653

applicant must provide in order to register to vote in a federal

election and limits what the Federal Form can require. It “may

require only such identifying information (including the sig-

nature of the applicant) and other information (including data

relating to previous registration by the applicant), as is neces-

sary to enable the appropriate State election official to assess

the eligibility of the applicant.” § 1973gg-7(b)(1). The Federal

Form accounts for eligibility concerns by requiring applicants

to attest, under penalty of perjury, that they meet every eligi-

bility requirement. § 1973gg-7(b)(2). Acknowledging the

states’ interests in ensuring voter eligibility, Congress allowed

states to give their input on the contents of the Federal Form

in an advisory capacity to the EAC. § 1973gg-7(a)(2). Given

the NVRA’s comprehensive regulation of the development of

the Federal Form, there is no room for Arizona to impose sua

sponte an additional identification requirement as a prerequi-

site to federal voter registration for registrants using that form.

If viewed as a second enactment by the same legislature, the

NVRA clearly subsumes Proposition 200’s additional docu-

mentary requirement on registrants using the Federal Form.

See Siebold, 100 U.S. at 384.

[9] Further supporting this conclusion, the value of the

Federal Form (and hence a centerpiece of the NVRA) would

be lost, and Congress’s goal to eliminate states’ discrimina-

tory or onerous registration requirements vitiated, if we were

to agree with Arizona that states could add any requirements

they saw fit to registration for federal elections through the

Federal Form. For instance, the NVRA prohibits the Federal

Form from requiring notarization or other such formal authen-

tication. § 1973gg-7(b)(3). If the NVRA did not supersede

additional state requirements on registrants using the Federal

Form, as Arizona asserts, then states would be free to impose

a notarization requirement as a prerequisite to their “accept-

[ance] and use” of the form, see § 1973gg-4(a)(1), even

though such a requirement would directly contradict Con-

gress’s intent in prohibiting such a requirement in the form

itself.

17654 GONZALEZ v. ARIZONA

[10] Moreover, specific statutory language in the NVRA,

when read in an unstrained and natural manner, is inconsistent

with the state enactment. The NVRA mandates that states

“shall accept and use” the Federal Form when applicants reg-

ister by mail. § 1973gg-4(a). It likewise requires “acceptance”

of the completed Federal Form at state office buildings, which

must be transmitted to the appropriate State election officials.

§ 1973gg-5(a)(4)(iii). The state must implement these meth-

ods of registering voters, as well as the combined motor

vehicle-voter registration form, § 1973gg-3(c)(1), “notwith-

standing any other Federal or state law,” § 1973gg-2(a). By

contrast, Proposition 200 precludes the state from registering

applicants who have completed and submitted the Federal

Form unless such applicants also mail in, or submit at the des-

ignated state office building, documentary proof of citizen-

ship. Ariz. Rev. Stat. §§ 16-152, 16-166. Such a requirement

falls under the umbrella of laws displaced by the NVRA’s

“notwithstanding” language.

Structurally, allowing states to impose their own require-

ments for federal voter registration on registrants using the

Federal Form would nullify the NVRA’s procedure for solic-

iting state input, and aggrandize the states’ role in direct con-

travention of the lines of authority prescribed by Section 7.

The NVRA permits states to suggest changes to the Federal

Form, but gives the EAC ultimate authority to adopt or reject

those suggestions. § 1973gg-7(a). Here, for example, before

enacting Proposition 200, Arizona petitioned the EAC to

include a requirement in the Federal Form that the applicant

present documentary proof of citizenship analogous to what

is required by Proposition 200. Pursuant to the procedure set

forth in the NVRA, the EAC denied the suggestion and

warned that Arizona “may not refuse to register individuals to

vote in a Federal election for failing to provide supplemental

proof of citizenship, if they have properly completed and

timely submitted the Federal Registration Form.” Faced with

this denial, Arizona proceeded to implement the requirement

in Proposition 200 as a separate state condition to voter regis-

GONZALEZ v. ARIZONA 17655

tration, which was imposed even on those registering to vote

in federal elections with the Federal Form. If the NVRA did

not supersede state-imposed requirements for federal voter

registration, this type of end-run around the EAC’s consulta-

tive process would become the norm, and Congress’s control

over the requirements of federal registration would be crip-

pled. Given that the Elections Clause gives Congress ultimate

authority over the federal voter registration process, Colgrove,

328 U.S. at 554, such a reading of the NVRA is untenable.

[11] More broadly, 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. As indicated

in our overview, supra Part C.2, the NVRA was sensitive to

the multiple purposes of a federal voter registration scheme,

including the need “to establish procedures that [would]

increase the number of eligible citizens who register to vote

in elections for Federal office” and the need to protect “the

integrity of the electoral process.” § 1973gg(b). The balance

struck by the EAC pursuant to § 1973gg-7(a) was to require

applicants to attest to their citizenship under penalty of per-

jury, but not to require the presentation of documentary proof.

Id. Proposition 200’s additional requirement is not consistent

with this balance.

Arizona argues that Proposition 200 does not conflict with

the NVRA because the NVRA nowhere expressly precludes

states from imposing requirements in addition to those of the

Federal Form. Focusing on the phrase in the NVRA Section

4 which requires states to “accept and use” the Federal Form

to register mail applicants, see § 1973gg-4(a)(1), Arizona

argues that its registration process complies with the NVRA

because the state makes the Federal Form available to appli-

cants, and will accept the Form so long as it is accompanied

by documentary proof of citizenship.

17656 GONZALEZ v. ARIZONA

[12] Like the petitioners in Foster, Arizona has offered a

creative interpretation of the state and federal statutes to avoid

a direct conflict. See Foster, 522 U.S. at 72. But as Foster

counsels, we do not strain to reconcile the state’s federal elec-

tion regulations with those of Congress under the Elections

Clause; rather, we consider whether the additional registration

requirement mandated by Proposition 200 is harmonious with

the procedures mandated by Congress under a natural reading

of the statutes. See id. at 74; Siebold, 100 U.S. at 384. As

explained above, allowing Arizona to impose Proposition

200’s registration provisions on top of the Federal Form con-

flicts with the NVRA’s purpose, procedural framework, and

the specific requirement that states use the Federal Form or its

equivalent, “notwithstanding any other state or federal law,”

§ 1973gg-2(a). Under Congress’s expansive Elections Clause

power, we must hold Arizona’s documentary proof of citizen-

ship requirement, Ariz. Rev. Stat. §§ 16-152(A)(23), 16-

166(F), superseded by the NVRA.15

4

Arizona’s remaining arguments do not persuade us to reach

15

Because we reach our conclusion based on the language and structure

of the statute, we do not rely on the EAC’s interpretation of the NVRA

or the NVRA’s legislative history. Because the parties argue the import of

these sources, we merely note that both are consistent with our holding.

As discussed supra page 17654, the EAC construes the NVRA as not per-

mitting states to “condition acceptance of the Federal Form upon receipt

of additional proof.” With respect to legislative history, the NVRA’s Con-

ference Report, which we have held is the most authoritative and reliable

legislative material, see, e.g., Nw. Forest Res. Council v. Glickman, 82

F.3d 825, 835 (9th Cir. 1996), shows that Congress rejected an amend-

ment to the NVRA which would have provided that “nothing in this Act

shall prevent a State from requiring presentation of documentation relating

to citizenship of an applicant for voter registration,” H.R. Rep. No. 103-

66, at 23 (1993). The conferees explained that the amendment was not

“consistent with the purposes of” the NVRA and “could effectively elimi-

nate, or seriously interfere with, the mail registration program of the Act.”

Id.

GONZALEZ v. ARIZONA 17657

a different conclusion. First, Arizona contends that an inter-

pretation of the NVRA that precludes states from imposing

additional voter registration requirements for federal elections

is unreasonable because Congress could not have intended

states to register “any and all” applicants who submit the Fed-

eral Form without any outlet for the states to check those

applicants’ qualifications. Arizona asserts that because the act

contemplates that some applications will be rejected, see

§ 1973gg-6(a)(2) (which requires states to notify “each appli-

cant of the disposition of the application”), the NVRA cannot

require states to automatically register every individual using

the Federal Form.

This argument reflects a misunderstanding of the NVRA.

As Section 6 demonstrates, states need not register every

applicant who completes and submits the Federal Form. See

§ 1973gg-6(a)(2). Voters still have to prove their eligibility

pursuant to the Federal Form. Contrary to Arizona’s assertion,

the NVRA does not require states to register applicants who

are ineligible, or whose forms are incomplete, inaccurate, or

illegible.

Second, Arizona argues that states must have freedom to

exercise their own methods for determining voter eligibility as

a protection against voter fraud. In ACORN v. Edgar, the Sev-

enth Circuit considered and discarded a similar argument. In

that case, the state claimed that the “Motor Voter” component

of the NVRA “opens the door to voter fraud.” 56 F.3d at 795.

The court rejected the argument in part because “federal law

contains a number of safeguards against vote fraud, and it is

entirely conjectural that they are inferior to the protections

that [state] law offers.” Id. at 795-96 (citation omitted).

We reach the same conclusion here. Congress was well

aware of the problem of voter fraud when it passed the

NVRA, as evidenced by the numerous fraud protections built

into the act. For one, Section 10 applies federal criminal pen-

alties to persons who knowingly and willingly engage in

17658 GONZALEZ v. ARIZONA

fraudulent registration tactics. § 1973gg-10(2). Second, Sec-

tions 3 and 7 require the Federal Form and the combined

motor vehicle-voter registration form to contain an attestation

clause that sets out the requirements for voter eligibility.

§§ 1973gg-3(c)(2)(C)(i)-(ii), 1973gg- 7(b)(2)(A)-(B). Appli-

cants are required to sign these forms under penalty of per-

jury. §§ 1973gg-3(c)(2)(C)(iii), 1973gg-7(b)(2)(C). Third,

Section 4 permits states to verify the eligibility and identity

of voters by requiring first-time voters who register by mail

to appear at the polling place in person, where the voter’s

identity can be confirmed. § 1973gg-4(c). Last, Section 6

requires states to give notice to applicants of the disposition

of their registration, which states may use as a means to detect

fraudulent registrations. See § 1973gg-6(a)(2). Because Con-

gress dealt with the issue of voter fraud in the NVRA, we are

not persuaded by Arizona’s claim that states must be permit-

ted to impose additional requirements to address the same

issue.

Third, Arizona suggests that Congress’s enactment of

HAVA, 42 U.S.C. § 15301 et seq., which Congress passed

after the NVRA, provides a gloss on the NVRA’s meaning.

According to Arizona, HAVA demonstrated Congress’s intent

to permit states to ensure the eligibility of voter registrants,

and made clear that states could exceed the minimum require-

ments of the NVRA in carrying out their registration func-

tions.

We disagree. Congress enacted HAVA in reaction to the

2000 Presidential election and the ensuing controversial Flor-

ida recount. Fla. State Conference of NAACP v. Browning,

522 F.3d 1153, 1155 (11th Cir. 2008). The NVRA and HAVA

operate in separate spheres: while the NVRA regulates voter

registration, HAVA is concerned with updating election tech-

nologies and other election-day issues at polling places.

As relevant here, HAVA interacts with the NVRA only on

a few discrete issues. First, HAVA added two check-boxes to

GONZALEZ v. ARIZONA 17659

the Federal Form, requiring applicants to check off whether

they are citizens of the United States and whether they are old

enough to vote. 42 U.S.C. § 15483(b)(4).

Second, HAVA permits mail registrants who have not pre-

viously voted in a federal election to submit documents veri-

fying their identity along with the Federal Form.

§ 15483(b)(3). First-time voters who take advantage of this

provision do not have to show their identification when they

arrive at the polling place, id., a step that the states may other-

wise require under the NVRA, see § 1973gg-4(c). This option

is not, however, a prerequisite to successful registration, as

applicants who choose not to submit documentation may still

be registered.

Third, HAVA requires states to assign each registrant a

“unique identifier” capable of being cross-checked against

voters’ identities at the polls. § 15483(a)(1)(A). HAVA pro-

vides that the unique identifier may be the applicant’s driver’s

license number or the last four digits of the applicant’s social

security number. See § 15483(a)(5)(A). But nothing in HAVA

allows the state to require these forms of identification as a

prerequisite to registration. Rather, if the applicant possesses

neither a driver’s license nor social security card, HAVA

requires the state to assign the applicant “a number which will

serve to identify the applicant for voter registration purposes.”

§ 15483(a)(5)(A)(ii). The unique identifier is not used to

check the citizenship of the registrant, but rather to ensure that

the voter who appears at the polls is the same person who reg-

istered to vote.

Nor does HAVA allow states to exceed the voter registra-

tion requirements set forth in the NVRA. In making this argu-

ment, Arizona points to the provision in HAVA stating that:

The requirements established by this title are mini-

mum requirements and nothing in this title shall be

construed to prevent a State from establishing elec-

17660 GONZALEZ v. ARIZONA

tion technology and administration requirements that

are more strict than the requirements so long as such

State requirements are not inconsistent with the Fed-

eral requirements under this subchapter or any law

[including the NVRA and other federal voting regu-

lations, § 15545].

§ 15484. But the “election technology and administration

requirements” referenced in this section refer to HAVA’s

requirements that states update election equipment (such as by

replacing punch card voting systems) and meet other voting

system standards. While § 15484 permits states to institute

their own technological and administrative improvements, it

does not allow them to impose additional requirements on the

voter registration process established by the NVRA. Indeed,

the section itself precludes states from adding requirements

“inconsistent with the Federal requirements under” the

NVRA. § 15484. Moreover, HAVA expressly provides that

“nothing [in HAVA] may be construed to authorize or require

conduct prohibited under [the NVRA].” § 15545(a)(4). This

language indicates Congress’s intent was to prevent HAVA

from interfering with NVRA’s comprehensive voter registra-

tion system. Accordingly, Arizona’s reliance on HAVA is

unavailing.

D

[13] Finally, Arizona argues that we are foreclosed from

reviewing Gonzalez’s NVRA claim because the prior panel’s

ruling in Gonzalez I, which occurred at the preliminary

injunction phase of this case, already decided that the NVRA

does not supersede the changes to Arizona’s registration sys-

tem under Proposition 200. See Gonzalez I, 485 F.3d at

1050-51. Arizona asserts that this prior ruling is dispositive,

and there is no ground for the court to reconsider the issue

here.

GONZALEZ v. ARIZONA 17661

[14] Addressing this argument requires us to review the

applicability of our law of the case doctrine.16 Under this doc-

trine, “one panel of an appellate court will not as a general

rule reconsider questions which another panel has decided on

a prior appeal in the same case.” Hegler v. Borg, 50 F.3d

1472, 1475 (9th Cir. 1995) (citation and internal quotation

marks omitted). The doctrine applies to prior decisions based

on pure issues of law, even those made, as here, in the prelim-

inary stages of review of the same case. See Ranchers Cattle-

men Action Legal Fund United Stockgrowers of Am. v. U.S.

Dep’t of Agric., 499 F.3d 1108, 1114 (9th Cir. 2007).

[15] “The effect of the doctrine is not dispositive, particu-

larly when a court is reconsidering its own judgment, for the

law of the case ‘directs a court’s discretion, it does not limit

the tribunal’s power.’ ” Mendenhall v. Nat. Transp. Safety

Bd., 213 F.3d 464, 469 (9th Cir. 2000) (quoting Arizona v.

California, 460 U.S. 605, 618 (1983)). In other words, “there

is nothing in the Constitution of the United States to require

[invocation of the doctrine], or to prevent a [court] from

allowing a past action to be modified while a case remains in

court.” King v. West Virginia, 216 U.S. 92, 101 (1910).

Instead, the doctrine’s utility is typically prudential: “it’s a

courteous and efficient way for a court to say ‘enough’s

enough’ when litigants seek reconsideration of prior interloc-

utory decisions.” Jeffries v. Wood (Jeffries V), 114 F.3d 1484,

1509 (9th Cir. 1997) (en banc) (Kozinski, J., dissenting) (cit-

ing cases), overruled on other grounds by Lindh v. Murphy,

521 U.S. 320 (1997).

16

Law of the case is part of a related set of preclusion principles that

includes stare decisis, res judicata, and collateral estoppel. 3 James Wm.

Moore et al., Moore’s Manual: Federal Practice & Procedure, § 30.01.

Though linked by the general animating purpose of judicial efficiency,

these principles are distinguished by the type or stage of litigation in

which they separately apply, and as a consequence each has its own policy

considerations. Id.

17662 GONZALEZ v. ARIZONA

That said, the policies animating the law of the case doc-

trine are undeniably fundamental. The doctrine “promotes the

finality and efficiency of the judicial process by protecting

against the agitation of settled issues.” Christianson v. Colt

Indus. Operating Corp., 486 U.S. 800, 816 (1988) (internal

quotation marks omitted). These are paramount concerns to

sound judicial administration, as “[a]n appellate court cannot

efficiently perform its duty to provide expeditious justice to

all if a question once considered and decided by it were to be

litigated anew in the same case upon any and every subse-

quent appeal.” Kimball v. Callahan, 590 F.2d 768, 771 (9th

Cir. 1979) (internal quotation marks omitted).

Balanced against these valid concerns, however, are

equally strong considerations that occasionally pull in the

opposite direction. We have held that the “[l]aw of the case

should not be applied woodenly in a way inconsistent with

substantial justice.” United States v. Miller, 822 F.2d 828, 832

(9th Cir. 1987); see also Rent-A-Center, Inc. v. Canyon Tele-

vision & Appliance Rental, Inc., 944 F.2d 597, 602 (9th Cir.

1991) (“[T]he law of the case is an equitable doctrine that

should not be applied if it would be unfair.”); Loumar, Inc. v.

Smith, 698 F.2d 759, 762 (5th Cir. 1983) (“The law of the

case doctrine is not . . . a barrier to correction of judicial error.

It is a rule of convenience and utility and yields to adequate

reason . . . .”). Interests of efficiency and finality clash with

the responsibility of the court to not issue judgments known

to be wrong on the facts or law.

[16] As a compromise between these sometimes counter-

vailing interests, we have identified three exceptional circum-

stances in which, on balance, we deem the concerns of finality

and efficiency outweighed. Law of the case should not oper-

ate as a constraint on judicial review where “(1) the decision

is clearly erroneous and its enforcement would work a mani-

fest injustice,17 (2) intervening controlling authority makes

17

As has been noted in prior cases, “[f]or some time, there have existed

in the Ninth Circuit two different formulations of the set of circumstances

GONZALEZ v. ARIZONA 17663

reconsideration appropriate, or (3) substantially different evi-

dence was adduced at a subsequent trial.” Jeffries V, 114 F.3d

at 1489 (internal quotation marks and footnote omitted). Here,

Gonzalez argues that the first exception applies. We agree.

The prior panel’s conclusion that the NVRA permits state-

imposed documentary proof of citizenship requirements on

registrants using the Federal Form was based on three provi-

sions of the statute. First, the panel indicated that under the

NVRA states must “either ‘accept and use the mail voter reg-

istration form prescribed by the Federal Election Commis-

sion’ or, in the alternative, ‘develop and use [their own]

form,’ as long as the latter conforms to the federal guide-

lines.” Gonzalez I, 485 F.3d at 1050 (second alteration in

original) (citations omitted). Second, the panel asserted that

the NVRA “prohibits states from requiring the form to be

notarized or otherwise formally authenticated.” Id. Last, the

panel described the NVRA as “permit[ting] states to

‘require[ ] such identifying information . . . as is necessary to

enable . . . election official[s] to assess the eligibility of the

applicant.” Id. (alterations in original). Construing these pro-

visions together, the panel concluded that the statute plainly

contemplates allowing states to require voters to present at

least some evidence of citizenship at the time of registration.

Id. at 1050-51.

in which a court may decline to follow the law of the case. The first for-

mulation . . . states that a court may depart from the law of the case if ‘the

previous decision is clearly erroneous and its enforcement would work a

manifest injustice.’ In contrast, the second formulation states that a court

may decline to follow the law of the case if ‘the first decision was clearly

erroneous’ or ‘a manifest injustice would otherwise result.” Tahoe-Sierra

Preservation Council, Inc. v. Tahoe Reg. Planning Agency, 216 F.3d 764,

787 n.43 (9th Cir. 2000) (citations and brackets omitted), aff’d on other

grounds, 535 U.S. 302 (2002); see also Mendenhall, 213 F.3d at 469 &

n.2. As in the other cases noting but not resolving this apparent conflict,

we need not settle this issue in the present case, because there are grounds

to satisfy the exception under either formulation of the standard.

17664 GONZALEZ v. ARIZONA

[17] As may be apparent from our NVRA analysis supra,

the prior panel’s conclusion was rooted in a fundamental mis-

reading of the statute. As the dissent acknowledges, see Dis-

sent at 17694-95, the NVRA does not give states freedom

“either” to accept and use the Federal Form “or, in the alterna-

tive,” develop their own form. See id. Rather, the NVRA

commands without exception that states “shall” accept and

use the Federal Form, and if they develop their own form, it

can be used only “in addition to” accepting and using the Fed-

eral Form, and still must meet all of the criteria of Section 7.

See § 1973gg-4(a). Thus, while Section 4 of the NVRA

applies the limitations of Section 7(b) to the states with

respect to the creation of their own state forms, nothing in the

text or structure of either provision supports reading Section

7(b) as giving the states any authority over or discretion to

modify the Federal Form. Insofar as the prior panel referred

to portions of the NVRA that relate to the Federal Form, see

Gonzalez I, 485 F.3d at 1050, those excerpts are directed

solely at the EAC, not the states. See § 1973gg-7(a)-(b).

These provisions cannot be said to “plainly allow states . . .

to require their citizens to present evidence of citizenship

when registering to vote” for federal elections via the Federal

Form. Id. at 1050-51.

The dissent takes issue with our analysis of the prior

panel’s opinion, suggesting that the panel may have been

using “either . . . or, in the alternative” in a conjunctive sense.

Dissent 17693-95. We disagree. The prior panel’s statement

that states can “either accept and use” the Federal Form “or,

in the alternative” develop and use their own form cannot rea-

sonably be interpreted to mean that states can both accept and

use the Federal Form and also develop and use their own

form. Indeed, such an interpretation would be contrary to the

prior panel’s logic; the prior panel based its conclusion that

states could require registrants using the Federal Form to

show additional identification on the ground that states could

require use of their own forms in lieu of the Federal Form.

GONZALEZ v. ARIZONA 17665

As another basis for upholding the prior panel’s opinion,

the dissent suggests that the prior panel’s conclusion was cor-

rect although its reasoning was erroneous, because “accept

and use” in § 1973gg-4(a)(1) can be read to mean “accept . . .

for a particular purpose [but] not have it be sufficient to sat-

isfy that purpose.” Dissent 17697. In other words, the dissent

argues that although states are required to “accept and use”

the Federal Form, the NVRA leaves them free to require pro-

spective voters to comply with additional registration require-

ments beyond those mandated by the Federal Form. As noted

above, Arizona makes a similar argument. This argument is

inconsistent with the language and structure of the NVRA.

The dissent’s strained interpretation would make the EAC’s

procedure for consultation and development of the Federal

Form under Section 7(a) an empty exercise, because any state

could require registrants to comply with additional state

requirements even if they register with the Federal Form. As

discussed above, under an Elections Clause framework, we do

not strain the language of the NVRA to render it harmonious

with Proposition 200. In the context of the NVRA, “accept

and use” can mean only one thing: the states must “accept and

use” the Federal Form as a fully sufficient means of register-

ing to vote in federal elections.

[18] Reasoning from a fundamental misreading of the stat-

ute, the prior panel reached a conclusion that was clear error.

See Jeffries V, 114 F.3d at 1489. The text, structure, and pur-

pose of the NVRA simply cannot bear the prior panel’s inter-

pretation. Moreover, this case represents an “exceptional

circumstance,” where the effect of the erroneous decision,

were it to stand, would result in a manifest injustice. Id. at

1489, 1492. Not only does the erroneous conclusion impede

the implementation of a major congressional enactment, but

it poses a significant inequity to citizens who are required

under the state law to navigate obstacles that do not exist

under federal law in pursuit of their fundamental right to vote.

See id. at 1492 (stating that manifest injustice may be found

where the challenged decision involves a “significant inequi-

17666 GONZALEZ v. ARIZONA

ty”). Though we are sensitive to the cautious approach courts

should take in deciding to alter an earlier panel’s decision,

because the prior decision in this case not only reached a

clearly erroneous result, but reached that result on the basis of

a misconstruction of the statute, we are convinced that there

are appropriately exceptional circumstances to review the

decision here.

The fact that the prior panel’s decision was contained in a

published opinion does not strip us of our discretion to review

its conclusions, because no subsequent published decision has

relied upon the prior panel’s decision for the proposition to be

overturned. See, e.g., Mendenhall, 213 F.3d at 469 (reversing

a prior published appellate opinion as clearly erroneous under

the exceptions to the law of the case); Tahoe-Sierra, 216 F.3d

at 786-87 (same). Under such circumstances, the law of the

circuit doctrine does not preclude us from revising prior deci-

sions in the same case under the established exceptions to the

law of the case. See Jeffries V, 114 F.3d 1484.

This conclusion was made clear in Jeffries V, an en banc

decision highlighting the workings of our law of the case doc-

trine. Although the procedural history of the Jeffries decisions

is complex,18 the central question addressed in Jeffries V was

18

The Jeffries decisions were a series of five opinions in response to a

habeas petition by Patrick Jeffries. Jeffries had been sentenced to death by

a jury, but petitioned for relief on the ground of juror misconduct (he

claimed that one juror had informed other jurors that Jeffries was a con-

victed armed robber). The district court rejected this claim on the ground

that even if true, this fact would not have affected the verdict. On appeal,

a panel of this court initially upheld the district court’s conclusion, Jeffries

v. Blodgett (Jeffries I), 974 F.2d 1179 (9th Cir. 1992), but then granted

Jeffries’s petition for rehearing and itself on the ground that Jeffries I con-

flicted with precedent. Jeffries v. Blodgett (Jeffries II), 988 F.2d 923 (9th

Cir. 1993). The panel then rejected the state’s petition for rehearing, but

amended Jeffries II to make clear that the claim of juror misconduct, if

true, would have had a “substantial and injurious effect” on the verdict.

Jeffries v. Blodgett (Jeffries III), 5 F.3d 1180 (9th Cir. 1993). On remand,

GONZALEZ v. ARIZONA 17667

whether Jeffries IV, 75 F.3d 491, erred in its application of an

exception to the law of the case. The Jeffries IV panel held

that it could reverse its prior holding in Jeffries III, 5 F.3d

1180, under the first exception to the law of the case , because

Jeffries III was “clearly erroneous and would work a manifest

injustice.” Jeffries IV, 75 F.3d at 494. In Jeffries V, we

rejected the state’s argument that we should avoid reaching

the law of the case issue and instead decide the case on the

merits, due to the importance of the law of the case doctrine

to our jurisprudence. See 114 F.3d at 1492. After a careful

review of the law of the case doctrine, we concluded in Jef-

fries V that the Jeffries IV panel had erred in overturning Jef-

fries III, because none of the exceptions to the law of the case

were applicable. Id. at 1489. Focusing on the first exception,

see id. at 1489 n.2, we concluded that Jeffries III was not

clearly erroneous, and would not work a manifest injustice,

and accordingly Jeffries IV had erred in reversing it. Id. at

1489.

The decision in Jeffries V was also supported on stare deci-

sis grounds. Noting that two Ninth Circuit panels had already

relied on Jeffries III at the time Jeffries IV was decided, see

Thompson v. Borg, 74 F.3d 1571, 1575 n.1 (9th Cir. 1996);

Lawson v. Borg, 60 F.3d 608, 612 (9th Cir. 1995), we stated

that a panel “must be exceedingly careful in altering the law

of its earlier opinion” in circumstances “when subsequent

the district court held that juror misconduct had in fact occurred and

granted Jeffries’s petition. See Jeffries V, 114 F.3d at 1488. After the state

appealed this ruling, the panel again reversed itself, holding that it had

interpreted precedent too broadly in Jeffries III, and that the law of the

case did not prevent reversal of Jeffries III because that decision was

“clearly erroneous and would work a manifest injustice.” See Jeffries v.

Wood (Jeffries IV), 75 F.3d 491 (9th Cir. 1996). Accordingly, the panel

reinstated its denial of Jeffries’s habeas petition. Jeffries petitioned for

rehearing en banc, which we granted to determine, among other things,

whether Jeffries IV had erred in reversing Jeffries III. See Jeffries V, 114

F.3d at 1488.

17668 GONZALEZ v. ARIZONA

panels have relied on the initial decision” because

“[o]therwise, intra-circuit conflict may arise, posing serious

difficulties.” Jeffries V, 114 F.3d at 1492. Moreover, we noted

that “to reach its decision properly, the Jeffries IV panel

would have had to reverse Lawson,” which could not properly

be done by a three-judge panel. Id. In explaining the effect of

prior published opinions on the applicability of our exceptions

to the law of the case, the en banc court in Jeffries V notably

did not adopt the view of the dissent in that case that “no

three-judge panel may reconsider a rule of law embodied in

a prior published opinion,” even one in the same case, Jeffries

V, 114 F.3d at 1511 (Kozinski, J., dissenting). In sum, under

our en banc decision in effries V, though a panel cannot over-

turn prior published opinions in different cases, it may over-

turn a prior published opinion in the same case if the

exceptions to the law of the case are applicable.

[19] In this case, no other panel of this court has relied

upon the prior panel’s decision for the proposition that the

NVRA does not supersede additional state requirements for

federal voter registration. Where no subsequent opinion has

relied on the prior published opinion for the proposition to be

overturned, there is no stare decisis problem and conse-

quently the law of the circuit doctrine does not prohibit revis-

ing the prior opinion.

Despite our decision in Jeffries V, the dissent argues that

we are bound by a rule that we can never reverse a prior pub-

lished opinion, even one in the same case. Dissent 17684-85.

On its face, this is the same rule that was proposed in the Jef-

fries V dissent and rejected by the majority. To overcome this

obstacle, the dissent claims that a footnote in United States v.

Washington (Washington IV), 593 F.3d 790 (9th Cir. 2010)

(en banc), overruled Jeffries V on this issue. Dissent 17685.

We disagree. Washington IV was heard en banc to resolve

an inconsistency between two conflicting lines of precedent

on the question whether federal recognition of a tribe has a

GONZALEZ v. ARIZONA 17669

bearing on that tribe’s entitlement to fishing rights under a

specific treaty. See 593 F.3d at 792-93, 798. In United States

v. Washington (Washington III), 394 F.3d 1152 (9th Cir.

2005), we held that the intervening federal recognition of a

tribe “was a sufficient condition for the establishment of treaty

fishing rights.” Id. at 1158. But in Greene v. United States

(Greene I), 996 F.2d 973, 976-77 (9th Cir. 1993), and Greene

v. Babbitt (Greene II), 64 F.3d 1266, 1270-71 (9th Cir. 1995),

we held that federal recognition of a tribe could have no effect

on treaty fishing rights. On appeal from the district court’s

decision following Washington III, we explained that “the

conflict in our precedent led us to rehear the matter en banc

without awaiting a three-judge decision.” Washington IV, 593

F.3d at 798 n.9. This is correct: a three-judge panel could not

have resolved the split between Washington III and Greene I

and II. The footnote on which the dissent relies further

explained that en banc review was necessary because, “[e]ven

if the panel could have revisited Washington III under one of

the exceptions to the law of the case, it still would have been

bound by that published opinion as the law of the circuit . . .

‘[W]e have no discretion to depart from precedential aspects

of our prior decision . . . under the general law-of-the-circuit

rule.’ ” Washington IV, 593 F.3d at 798 n.9 (citations omitted)

(quoting Old Person v. Brown, 312 F.3d 1036, 1039 (9th Cir.

2002)).

In light of the detailed discussion in Jeffries V regarding

exceptions to the law of the case doctrine, we cannot read this

sentence as overruling this longstanding doctrine. While Jef-

fries V was expressly decided on the law-of-the-case ground,

nothing in Washington IV turned on the law of the case doc-

trine. Nor did Washington IV expressly consider or overrule

our en banc decision in Jeffries V. “In our circuit, statements

made in passing, without analysis, are not binding precedent.”

Thacker v. FCC (In re Magnacom Wireless, LLC), 503 F.3d

984, 993-94 (9th Cir. 2007); see also United States v. John-

son, 256 F.3d 895, 915 (9th Cir. 2001) (en banc) (Kozinski,

J,. concurring) (“Of course, not every statement of law in

17670 GONZALEZ v. ARIZONA

every opinion is binding on later panels. Where it is clear that

a statement is made casually and without analysis, where the

statement is uttered in passing without due consideration of

the alternatives, or where it is merely a prelude to another

legal issue that commands the panel’s full attention, it may be

appropriate to re-visit the issue in a later case.”). The Wash-

ington IV footnote on which the dissent relies neither exhibits

“reasoned consideration” of our law of the case doctrine,

Johnson, 256 F.3d at 914, nor discusses an issue “germane,”

id., to the resolution of Washington IV. In fact, it can more

accurately be described as informational, “casual[,] and with-

out analysis,” id. at 915. Moreover, the Washington IV foot-

note is silent on the question whether subsequent published

opinions had relied on Washington III, which Jeffries V held

could preclude an application of the exceptions to the law of

the case. Jeffries V, 114 F.3d at 1489. Accordingly, we

decline to hold that this footnote overruled sub silentio the

reasoned analysis of the en banc court in Jeffries V.19

[20] Because, as set forth above, the prior panel’s decision

on the NVRA issue meets the standard of a recognized law of

the case exception, we have discretion to review that decision,

and we have chosen to exercise that discretion here.

E

Perhaps the instructions to the Federal Form put it best in

stating: “you can use the application in this booklet to: Regis-

ter to vote in your State.” Under the NVRA, prospective vot-

ers seeking to register in federal elections need only complete

and submit the Federal Form. If this sounds simple, it is by

19

The other cases cited by the dissent in support of its version of the law

of the circuit doctrine were decided by three-judge panels and thus could

not have overruled Jeffries V. See Minidoka Irrigation Dist. v. Dep’t of

Interior, 406 F.3d 567 (9th Cir. 2005); Old Person, 312 F.3d 1036; Hilao

v. Estate of Marcos, 103 F.3d 767 (9th Cir. 1996). One of these cases also

pre-dated Jeffries. See Hilao, 103 F.3d 767.

GONZALEZ v. ARIZONA 17671

design. Congress enacted the NVRA to increase federal regis-

tration by streamlining the registration process and eliminat-

ing complicated state-imposed hurdles to registration, which

it determined were driving down voter turnout rates. Proposi-

tion 200 imposes such a hurdle. In light of Congress’s para-

mount authority to “make or alter” state procedures for

federal elections, see Foster, 522 U.S. at 69; Siebold, 100

U.S. at 371, we hold that the NVRA’s comprehensive regula-

tion of federal election registration supersedes Arizona’s doc-

umentary proof of citizenship requirement, Ariz. Rev. Stat.

§§ 16-152(A)(23), 16-166(F).

Because we hold Arizona’s registration requirement void

under the NVRA, we need not reach Gonzalez’s claim that

the documentary proof of citizenship requirement imposes

greater burdens of registration on naturalized citizens than on

non-naturalized citizens and burdens the fundamental right to

vote in violation of the Fourteenth Amendment’s Equal Pro-

tection Clause.

III

[21] The remainder of our analysis focuses solely on the

validity of Arizona’s polling place provision, Ariz. Rev. Stat.

§ 16-579.20 That statute requires voters to show proof of iden-

tification before voting at the polls. Id. We first consider Gon-

zalez’s appeal from the district court’s decision that

20

Because Congress’s authority under the Elections Clause is limited to

preempting regulations related to federal elections, our holding invalidat-

ing Proposition 200’s registration requirement does not prevent Arizona

from applying its requirement in state election registrations. However,

Arizona has presented its system of voter registration under Proposition

200 as concurrently registering voters for state and federal elections, and

has not indicated that, in the event Gonzalez prevails on the NVRA claim,

it plans to establish a separate state registration system. We therefore do

not consider whether Proposition 200’s registration requirement, as

applied only to state registrations, is valid under Gonzalez and ITCA’s

remaining claims.

17672 GONZALEZ v. ARIZONA

Proposition 200 does not violate § 2 of the VRA, 42 U.S.C.

§ 1973.

A

[22] Section 2(a) of the VRA prohibits states from impos-

ing voting qualifications that result in the “denial or abridge-

ment of the right of any citizen of the United States to vote

on account of race or color.” 42 U.S.C. § 1973(a). A violation

of § 2 is established “if, based on the totality of circum-

stances, it is shown that the political processes leading to

nomination or election in the State or political subdivision are

not equally open to participation” by members of a protected

class “in that its members have less opportunity than other

members of the electorate [1] to participate in the political

process and [2] to elect representatives of their choice.”

§ 1973(b). Said otherwise, a plaintiff can prevail in a § 2

claim only if, “based on the totality of the circumstances, the

challenged voting practice results in discrimination on

account of race.”21 Farrakhan v. Washington, 338 F.3d 1009,

1015 (9th Cir. 2003); see also United States v. Blaine Cnty.,

Mont., 363 F.3d 897, 903 (9th Cir. 2004). A violation of Sec-

tion 2 does not require a showing of discriminatory intent,

only discriminatory results. See Chisom v. Roemer, 501 U.S.

380, 383 (1991); Ruiz v. City of Santa Maria, 160 F.3d 543,

557 (9th Cir. 1998).

In applying the totality of the circumstances test, “a court

must assess the impact of the contested structure or practice

on minority electoral opportunities on the basis of objective

factors.” Thornburg v. Gingles, 478 U.S. 30, 44 (1986) (inter-

nal quotation marks omitted). In conducting a § 2 analysis,

courts are required to make a “searching inquiry” into “how

the challenged [state] practice interacts with social and histor-

21

This approach applies both to claims of vote denial and of vote dilu-

tion. Smith v. Salt River Project Agric. Improvement & Power Dist., 109

F.3d 586, 596 n.8 (9th Cir. 1997).

GONZALEZ v. ARIZONA 17673

ical conditions to cause an inequality in the opportunities

enjoyed by” minorities in the electoral process. Farrakhan,

338 F.3d at 1016, 1020 (internal quotation marks omitted). In

Gingles, the Supreme Court cited a non-exhaustive list of nine

factors (generally referred to as the “Senate Factors” because

they were discussed in the Senate Report on the 1982 amend-

ments to the VRA) that courts should consider in making this

totality of the circumstances assessment. 478 U.S. at 44-45.

Relevant here, the factors direct courts to consider the history

of official state discrimination against the minority with

respect to voting, the extent to which voting in the state is

racially polarized, and “the extent to which members of the

minority group in the state or political subdivision bear the

effects of discrimination in such areas as education, employ-

ment and health, which hinder their ability to participate

effectively in the political process.” Id. at 36-37 (quoting S.

Rep. No. 97-417, at 28-29 (1982), as reprinted in 1982

U.S.C.C.A.N. 177, 206-07). “[T]here is no requirement that

any particular number of factors be proved, or that a majority

of them point one way or the other.” Farrakhan v. Gregoire,

590 F.3d 989, 999 (9th Cir. 2010) (internal quotation marks

omitted).

Gonzalez alleges that Proposition 200’s registration and

polling place identification requirements violate § 2 by dispa-

rately affecting Latino voters, unlawfully diluting their right

to vote and providing them with less opportunity than other

members of the electorate to participate in the political pro-

cess. Considering statistical evidence on the existence of dis-

parate impact on Latino registrants and voters, the district

court determined that the limited statistical disparity between

the Latinos’ registration and voting as compared to the rest of

the electorate was not statistically significant. Turning to the

Senate Factors listed above, the district court found that

Latinos had suffered a history of discrimination in Arizona

that hindered their ability to participate in the political process

fully, that there were socioeconomic disparities between

17674 GONZALEZ v. ARIZONA

Latinos and whites in Arizona, and that Arizona continues to

have some degree of racially polarized voting.

Despite the presence of limited statistical disparity and

some of the Senate Factors, however, the district court con-

cluded that Gonzalez’s claim failed because there was no

proof of a causal relationship between Proposition 200 and

any alleged discriminatory impact on Latinos. The district

court noted that not a single expert testified to a connection

between the requirement that Latinos show identification

under Proposition 200 and the observed difference in voter

registration and voting rates of Latinos. Furthermore, the dis-

trict court held that Gonzalez failed to explain how Proposi-

tion 200’s requirements interact with the social and historical

climate of discrimination to impact Latino voting in Arizona.

Without a causal link between the voting practice and prohib-

ited discriminatory result, the district court concluded that

Gonzalez had not proven that Proposition 200 results in dis-

crimination “on account of race or color,” and that the claim

must therefore be denied.

B

Because a § 2 analysis requires the district court to engage

in a “searching practical evaluation of the past and present

reality,” Gingles, 478 U.S. at 45 (internal quotation marks

omitted), a district court’s examination is “intensely fact-

based and localized,” Salt River, 109 F.3d at 591. We there-

fore “[d]efer[ ] to the district court’s superior fact-finding

capabilities,” id., and review for clear error the district court’s

findings of fact, including its ultimate finding whether, under

the totality of the circumstances, the challenged practice vio-

lates § 2, Old Person v. Cooney, 230 F.3d 1113, 1119 (9th

Cir. 2000) (citing Gingles, 478 U.S. at 78-79). We review de

novo the district court’s legal determinations and mixed find-

ings of law and fact. Salt River, 109 F.3d at 591. Again,

because we have held that Proposition 200’s voter registration

requirements are superseded by the NVRA, supra Part II, we

GONZALEZ v. ARIZONA 17675

consider only Proposition 200’s requirement that voters show

identification at the polls, Ariz. Rev. Stat. § 16-579.

[23] The district court did not clearly err in concluding that

Gonzalez failed to establish that Proposition 200’s require-

ments caused any disparate impact on Latinos. To prevail

under § 2, a plaintiff must prove “a causal connection

between the challenged voting practice and a prohibited dis-

criminatory result.” Salt River, 109 F.3d at 595 (alteration

omitted). “[A] bare statistical showing of disproportionate

impact on a racial minority does not satisfy the § 2 ‘results’

inquiry.” Id. at 595 (emphasis in original) (collecting cases).

To prove that such a causal relationship exists, a plaintiff need

not show that the challenged voting practice caused the dispa-

rate impact by itself. See Farrakhan, 338 F.3d at 1018-19.

Rather, pursuant to a totality of the circumstances analysis,

the plaintiff may prove causation by pointing to the interac-

tion between the challenged practice and external factors such

as surrounding racial discrimination, and by showing how that

interaction results in the discriminatory impact. Id. at 1019.

But even under this broad totality of the circumstances analy-

sis, the causation requirement is crucial: a court may not

enjoin a voting practice under § 2 unless there is evidence that

the practice results in a denial or abridgement of the rights of

a citizen on account of race or color. § 1973(a). If there is no

evidence that the voting practice resulted in any such dispa-

rate impact, there is no violation and thus no basis for injunc-

tive relief.

[24] The district court correctly applied this standard here.

The challenged practice at issue is Proposition 200’s require-

ment that voters show identification at the polls. To prove

causation, Gonzalez had to establish that Proposition 200’s

requirement that voters must produce forms of identification,

as applied to Latinos, resulted in a prohibited discriminatory

result. Here, Gonzalez alleged in his complaint that “Latinos,

among other ethnic groups, are less likely to possess the

forms of identification required under Proposition 200 to . . .

17676 GONZALEZ v. ARIZONA

cast a ballot,” but produced no evidence supporting this alle-

gation. The record does include evidence of Arizona’s general

history of discrimination against Latinos and the existence of

racially polarized voting. But Gonzalez adduced no evidence

that Latinos’ ability or inability to obtain or possess identifi-

cation for voting purposes (whether or not interacting with the

history of discrimination and racially polarized voting)

resulted in Latinos having less opportunity to participate in

the political process and to elect representatives of their

choice. Without such evidence, we cannot say that the district

court’s finding that Gonzalez failed to prove causation was

clearly erroneous. Therefore we affirm the district court’s

denial of this claim.22

IV

Gonzalez I, which considered Gonzalez and ITCA’s appeal

from the district court’s denial of a preliminary injunction,

concluded that Arizona’s registration identification require-

ment was not a poll tax. See 485 F.3d at 1049. We held that

the registration requirement did not (1) force voters “to

choose between paying a poll tax and providing proof of citi-

zenship when they register to vote,” the standard set forth in

Harman v. Forssenius, 380 U.S. 528, 541-42 (1965); and did

not (2) “make[ ] the affluence of the voter or payment of any

fee an electoral standard,” as was held impermissible under

the Fourteenth Amendment in Harper v. Virginia State Board

of Elections, 383 U.S. 663, 666 (1966). Gonzalez I, 485 F.3d

at 1049 (internal quotation marks omitted) (brackets in origi-

nal).

[25] Here, Gonzalez and ITCA argue that Proposition 200

imposes an unconstitutional poll tax in violation of the

22

Gonzalez also argues that the district court erred in evaluating one of

the Senate Factors and in concluding that the disparate impact on Latinos

was statistically insignificant. Because Gonzalez’s failure to show causa-

tion is dispositive, however, we need not reach these issues.

GONZALEZ v. ARIZONA 17677

Twenty-fourth Amendment. Separately, ITCA asserts that

Proposition 200 is also a poll tax under the Fourteenth

Amendment. Guided by the analysis in Gonzalez I, we con-

clude that Proposition 200’s polling place identification

requirement is not a poll tax under either constitutional provi-

sion.

A

The Twenty-fourth Amendment provides that:

The right of citizens of the United States to vote in

any primary or other election for President or Vice

President, for electors for President or Vice Presi-

dent, or for Senator or Representative in Congress,

shall not be denied or abridged by the United States

for or any State by reason of failure to pay any poll

tax or other tax.

U.S. Const. amend. XXIV.

Gonzalez does not argue that requiring voters to show iden-

tification at the polls is itself a poll tax. Rather, Gonzalez

argues that, because some voters do not possess the identifica-

tion required under Proposition 200, those voters will be

required to spend money to obtain the requisite documenta-

tion, and that this payment is indirectly equivalent to a tax on

the right to vote.

[26] This analysis is incorrect. Although obtaining identifi-

cation required under Arizona’s statute may have a cost, it is

neither a poll tax itself (it is not a fee imposed on voters as

a prerequisite for voting), nor is it a burden imposed on voters

who refuse to pay a poll tax. Cf. Harman, 380 U.S. at 541-42.

Our conclusion is consistent with Harman, the only

Supreme Court case considering the Twenty-fourth Amend-

ment’s ban on poll taxes. In that case, the Court considered

17678 GONZALEZ v. ARIZONA

a state statute that required voters to either pay a $1.50 poll

tax on an annual basis or go through “a plainly cumbersome

procedure,” id. at 541, for filing an annual certificate of resi-

dence. Id. at 530-32. There was no dispute that the $1.50 fee

was a poll tax barred by the Twenty-Fourth Amendment. See

id. at 540. Accordingly, the only question before the Court

was whether the state “may constitutionally confront the fed-

eral voter with a requirement that he either pay the customary

poll taxes as required for state elections or file a certificate of

residence.” Id. at 538. The Court enunciated the rule that a

state may not impose “a material requirement solely upon

those who refuse to surrender their constitutional right to vote

in federal elections without paying a poll tax.” Id. at 542.

Applying this rule, the Court determined that the state’s certif-

icate of residence requirement was a material burden: among

other things, the procedure for filing the certificate was

unclear, the requirement that the certificate be filed six

months before the election “perpetuat[ed] one of the disen-

franchising characteristics of the poll tax which the Twenty-

fourth Amendment was designed to eliminate,” and the state

had other alternatives to establish that voters were residents,

including “registration, use of criminal sanction[s], purging of

registration lists, [and] challenges and oaths.” Id. at 541-43.

Accordingly, the Court concluded that “[w]e are thus con-

strained to hold that the requirement imposed upon the voter

who refuses to pay the poll tax constitutes an abridgment of

his right to vote by reason of failure to pay the poll tax.” Id.

at 542.

[27] Arizona’s polling place requirement is not analogous.

Proposition 200’s requirement that voters identify themselves

at the polling place is not a poll tax, as stated in Gonzalez I.

485 F.3d at 1049. Voters have only to verify their eligibility

by showing identification at the polls,23 which does not consti-

23

Voters who use an early ballot to vote do not even have to show iden-

tification. Ariz. Rev. Stat. § 16-550(A) (for early ballots, elector identity

is verified by signature comparison alone).

GONZALEZ v. ARIZONA 17679

tute a tax, a point which Gonzalez does not dispute. Nor does

Proposition 200’s identification requirement place a material

burden on voters “solely because of his refusal to waive the

constitutional immunity” to a poll tax. Harman, 380 U.S. at

542. Voters are not given the choice between paying a poll tax

or obtaining identification; all voters are required to present

identification at the polling place. See Gonzalez I, 485 F.3d at

1049. Cf. Harman, 380 U.S. at 541-42. Because “Arizona’s

system does not, as a matter of law, qualify as a poll tax,” the

district court was correct in concluding that Proposition 200’s

requirement of identification at the polling place did not vio-

late the Twenty-fourth Amendment. See Gonzalez I, 485 F.3d

at 1049.

B

[28] Nor is Proposition 200’s requirement that voters show

identification at the polling place a poll tax under the Four-

teenth Amendment’s Equal Protection Clause.24 Harper is the

leading Supreme Court case considering whether a state law

is a poll tax under the Equal Protection Clause. In Harper, the

Supreme Court held that a state law levying an annual $1.50

poll tax on individuals exercising their right to vote in the

state was unconstitutional under the Equal Protection Clause.

Id. at 665-66 & n.1. The Court held that “the interest of the

State, when it comes to voting, is limited to the power to fix

qualifications,” id. at 668, and that the imposition of poll

taxes fell outside this power because “[w]ealth, like race,

creed, or color, is not germane to one’s ability to participate

24

ITCA’s briefing collapses the Twenty-fourth Amendment and Four-

teenth Amendment poll tax claims into a single argument. But these are

different claims that arise under different constitutional amendments. The

Twenty-fourth Amendment extends only to federal elections, see Harman,

380 U.S. at 540 (holding that “the Twenty-fourth Amendment abolish[ed]

the poll tax as a requirement for voting in federal elections”), while the

Fourteenth Amendment also invalidates restrictions on the right to vote in

state elections, see Harper, 383 U.S. at 666. Therefore, we have addressed

these claims separately.

17680 GONZALEZ v. ARIZONA

intelligently in the electoral process,” id. Because the state’s

poll tax made affluence of the voter an electoral standard, and

such a standard is irrelevant to permissible voter qualifica-

tions, the Court concluded that the tax was invidiously dis-

criminatory and a per se violation of the Equal Protection

Clause. Id. at 666-67.

[29] Arizona’s polling place identification requirement

falls outside of Harper’s rule that “restrictions on the right to

vote are invidious if they are unrelated to voter qualifica-

tions.” Crawford v. Marion Cnty. Elections Bd., 128 S. Ct.

1610, 1616 (2008) (plurality opinion). The requirement that

individuals show documents proving their identity is not an

invidious classification based on impermissible standards of

wealth or affluence, even if some individuals have to pay for

them. On the contrary, requiring individuals to show identifi-

cation falls squarely within the state’s power to fix core voter

qualifications. Photo identification addresses the most basic

voter criterion: that individuals seeking to cast a ballot are

who they purport to be and are in fact eligible to vote. Even

ITCA admits that this is a valid state interest.

ITCA argues that the Court’s more recent decision in

Crawford, 128 S.Ct. 1610,25 extended Harper’s holding to

include a prohibition on indirect fees, such as fees or costs

necessary to obtain required identification documents. ITCA

seeks the benefit of Harper’s per se rule that such an electoral

standard is invidiously discriminatory, and thus violates the

Equal Protection Clause.

25

Crawford was decided by the Supreme Court after this court’s holding

in Gonzalez I. ITCA frames Crawford as an “intervening controlling

authority” that provides a basis for this court to reconsider its decision in

Gonzalez I that Arizona’s registration requirement is not a poll tax.

Because Gonzalez I did not address whether the polling place identifica-

tion requirement constituted a poll tax, see 485 F.3d at 1048-49, we need

not address this argument.

GONZALEZ v. ARIZONA 17681

This argument is not consistent with Crawford. Crawford

involved an Indiana state requirement that a citizen voting in

person or at the office of the circuit court clerk before election

day present a photo identification card issued by the govern-

ment. Id. at 1613. The state would provide a free photo identi-

fication to “qualified voters able to establish their residence

and identity.” Id. at 1614. A number of plaintiffs challenged

this requirement on the ground that the “new law substantially

burdens the right to vote in violation of the Fourteenth

Amendment.” Id.

Although the Court was unable to agree on the rationale for

upholding Indiana’s photo identification requirement,26 nei-

ther the lead opinion nor the concurrence held that Harper’s

per se rule applied to Indiana’s photo identification require-

ment. See id. at 1624. The lead opinion, upon which ITCA

relies, explained that Harper’s “litmus test” made “even ratio-

nal restrictions on the right to vote . . . invidious if they are

unrelated to voter qualifications.” Id. at 1616. But according

to the lead opinion, later election cases had moved away from

Harper to apply a balancing test to state-imposed burdens on

the voting process. Id. Under these later cases, a court “must

identify and evaluate the interests put forward by the State as

justifications for the burden imposed by its rule, and then

make the ‘hard judgment’ that our adversary system

demands.” Id. The lead opinion then proceeded to apply this

balancing test to the Indiana photo identification requirement.

Id. Crawford did not purport to overrule Harper, however,

which remains as an example of an electoral standard for

which a state would never have sufficiently weighty interests

to justify the requirement that a fee be paid in order to vote.

Id. Because Crawford did not extend Harper’s per se rule to

other burdens imposed on voters, but left it applicable only to

poll tax requirements, Crawford does not support ITCA’s

26

The lead opinion authored by Justice Stevens was joined by Chief Jus-

tice Roberts and Justice Kennedy. Justice Scalia filed a concurring opinion

joined by Justice Thomas and Alito. The other three justices dissented.

17682 GONZALEZ v. ARIZONA

argument that Proposition 200’s identification requirement is

per se invalid under Harper.

Although ITCA’s reliance on Crawford is not entirely

clear, ITCA does not appear to argue that Proposition 200’s

identification requirement is invalid under Crawford’s balanc-

ing test. ITCA does not, for example, claim that the burden

imposed by the photo identification was impermissibly heavy

in light of Arizona’s legitimate interests. Such an argument

would be unavailing in any event. The lead opinion in Craw-

ford held that the burden imposed on citizens who must obtain

a photo identification document was not sufficiently heavy to

support a facial attack on the constitutionality of the state law,

in light of the state’s legitimate interests in deterring and

detecting voter fraud, modernizing election procedures, and

safeguarding voter confidence. Id. at 1617, 1623. The same

reasoning is applicable here. While the lead opinion noted that

photo identification cards were provided free by Indiana, the

lead opinion also recognized that to obtain Indiana’s free

photo identification cards, individuals were required to “pres-

ent at least one ‘primary’ document, which can be a birth cer-

tificate, certificate of naturalization, U.S. veterans photo

identification, U.S. military photo identification, or a U.S.

passport.” Id. at 1621 n.17. Obtaining these primary docu-

ments, the Supreme Court acknowledged, may require pay-

ment of a fee. Id. Because Proposition 200 identification

requirements include these same sorts of primary documents,

Proposition 200’s requirements are no more burdensome than

those upheld by Crawford. ITCA does not argue that Arizo-

na’s interests in imposing a photo identification requirement

are any less weighty than Indiana’s interests in deterring and

detecting voter fraud, modernizing election procedures, and

safeguarding voter confidence. Therefore, even under the bal-

ancing test set forth in the Crawford lead opinion, we would

uphold Proposition 200’s polling place identification require-

ment against a facial challenge.

[30] In sum, because any payment associated with obtain-

ing the documents required under Proposition 200’s photo

GONZALEZ v. ARIZONA 17683

identification provision is related to the state’s legitimate

interest in assessing the eligibility and qualifications of voters,

the photo identification requirement is not an invidious

restriction under Harper, and the burden is minimal under

Crawford. As such, Arizona’s polling place photo identifica-

tion requirement does not violate the Fourteenth Amend-

ment’s Equal Protection Clause.

V

[31] Our system of dual sovereignty, which gives the state

and federal governments the authority to operate within their

separate spheres, “is one of the Constitution’s structural pro-

tections of liberty.” Printz v. United States, 521 U.S. 898, 921

(1997). “Just as the separation and independence of the coor-

dinate branches of the Federal Government serve to prevent

the accumulation of excessive power in any one branch, a

healthy balance of power between the States and the Federal

Government will reduce the risk of tyranny and abuse from

either front.” Id. (quoting Gregory, 501 U.S. at 458). Despite

our respect for the state’s exercise of its sovereign authority,

however, the Constitution’s text requires us to enforce the

specific enumerated powers that are bestowed on the federal

government and denied to the states. The authority granted to

Congress under the Elections Clause to “make or alter” state

law regulating procedures for federal elections is one such

power. The Framers of the Constitution were clear that the

states’ authority to regulate extends only so far as Congress

declines to intervene. U.S. Const. art. 1, § 4, cl. 1; e.g., Foster,

522 U.S. at 69. Given the paramount authority delegated to

Congress by the Elections Clause, we conclude that the

NVRA, which implemented a comprehensive national system

for registering federal voters, supersedes Arizona’s conflict-

ing voter registration requirement for federal elections. We

uphold Arizona’s polling place identification requirement

with respect to all other claims.27

27

Each party will bear its own costs on appeal.

17684 GONZALEZ v. ARIZONA

AFFIRMED in part and REVERSED in part.

Chief Judge KOZINSKI, dissenting in large part:*

As the majority belatedly acknowledges more than halfway

into its opinion, we don’t come to this case with a blank slate.

A prior panel has already held in a published opinion that

Proposition 200 isn’t preempted because the National Voter

Registration Act (“NVRA”) “plainly allow[s] states, at least

to some extent, to require their citizens to present evidence of

citizenship when registering to vote.” Gonzalez v. Arizona,

485 F.3d 1041, 1050-51 (9th Cir. 2007) (“Gonzalez I”). That

is law of the circuit and therefore binding on us. See, e.g.,

Miller v. Gammie, 335 F.3d 889, 899-900 (9th Cir. 2003) (en

banc). Even if it weren’t, it’s law of the case and can’t be

lightly disregarded for that reason. See, e.g., Merritt v.

Mackey, 932 F.2d 1317, 1322 (9th Cir. 1991). The majority

refuses to accept the consequences of this reality. First, it

evades law of the circuit by creating an exception that is

squarely foreclosed by a recent unanimous en banc opinion.

The majority then weakens our rules governing law of the

case by declaring that Gonzalez I’s interpretation of the

NVRA is “clearly erroneous” when it’s clearly not. Because

I believe that we must take precedent seriously and that Gon-

zalez I was correctly decided, I dissent from the majority’s

conclusion that the NVRA preempts Arizona’s voter registra-

tion requirement.

*I concur in the portion of the judgment upholding Proposition 200’s

polling place provision, Ariz. Rev. Stat. § 16-579. For the reasons articu-

lated by the district court in its thorough decision, I would affirm its ruling

in favor of Arizona on the equal protection and Voting Rights Act chal-

lenges to Proposition 200’s voter registration requirement.

GONZALEZ v. ARIZONA 17685

I.

The fundamental rule of circuit law is that once a panel

decides a legal issue in a published opinion, that ruling binds

subsequent three-judge panels. The only instance when a

three-judge panel may depart from a prior published opinion

is if there has been “intervening” higher authority that is

“clearly irreconcilable with our prior circuit authority.” Mil-

ler, 335 F.3d at 900. And this instance is not truly an excep-

tion to the rule because it’s the intervening higher authority,

not the three-judge panel, that overrules the earlier opinion.

There are in fact no exceptions to law of the circuit, or at least

there weren’t until today.

The majority holds that, although a published opinion is

binding generally, it doesn’t bind later panels in the same

case. For those panels, “[w]here no subsequent opinion has

relied on the prior published opinion for the proposition to be

overturned, . . . the law of the circuit doctrine does not pro-

hibit revising the prior opinion.” Maj. at 17668.

This exception to the published opinion rule is irreconcil-

able with our recent en banc opinion in United States v.

Washington, 593 F.3d 790 (9th Cir. 2010) (en banc)

(“Washington IV”). In that case, the three-judge panel was

confronted with a conflict between a prior opinion in the same

case and another panel’s opinion in a different case. Because

it lacked the power to resolve the conflict, the three-judge

panel had to call the case en banc sua sponte. Sitting en banc,

we held:

This appeal was initially argued to a three-judge

panel, but the conflict in our precedent led us to

rehear the matter en banc without awaiting a three-

judge decision. See Atonio v. Wards Cove Packing

Co., 810 F.2d 1477, 1478-79 (9th Cir. 1987) (en

banc). This step was necessary because, even if the

panel could have revisited Washington III under one

17686 GONZALEZ v. ARIZONA

of the exceptions to law of the case, see Jeffries v.

Wood, 114 F.3d 1484, 1489 (9th Cir. 1997) (en

banc), it still would have been bound by that pub-

lished opinion as the law of the circuit, see, e.g., Old

Person v. Brown, 312 F.3d 1036, 1039 (9th Cir.

2002) (“[W]e have no discretion to depart from pre-

cedential aspects of our prior decision in Old Person

I, under the general law-of-the-circuit rule.”).

Washington IV, 593 F.3d at 798 n.9.

Applying the Washington IV rule to this case is simple.

“[E]ven if” our three-judge panel were permitted to revisit the

prior panel’s opinion “under one of the exceptions to law of

the case,” we are “still . . . bound by that published opinion

as the law of the circuit” and have “no discretion to depart

from [it].” Id. (emphasis added). Washington IV—which

clearly holds that law of the circuit trumps law of the case—

forecloses the majority’s theory.

The majority brushes aside Washington IV, relying instead

on three earlier cases, foremost Jeffries v. Wood, 114 F.3d

1484 (9th Cir. 1997) (en banc) (“Jeffries V”). There are two

problems with the majority’s reliance on Jeffries V, both of

which are fatal to the majority’s new rule. First, Jeffries V was

about law of the case, not law of the circuit. Jeffries V held

that the three-judge panel in Jeffries IV erred by failing to fol-

low Jeffries III, and based this conclusion on law of the case.

114 F.3d at 1492-93. The majority makes much of the fact

that the dissent in Jeffries V would have resolved the case on

law of the circuit grounds. Maj. at 17668. But it is peculiar

indeed to impute a holding to the majority on an issue it never

addressed, because it chose not to follow the contrary reason-

ing of the dissent. A dissent has no precedential value, United

States v. Ameline, 409 F.3d 1073, 1083 n.5 (9th Cir. 2005) (en

banc), and the majority is surely not obligated to address

every argument made there. It is obviously dangerous to infer

that the majority ruled on a matter as to which it never

GONZALEZ v. ARIZONA 17687

expressed an opinion. By that peculiar reasoning, a majority

can be held to have decided an issue—and made it law of the

circuit—when it never said a word on the subject.

The Jeffries V majority had very little to say about law of

the circuit, and what it did say totally undermines the majority

here: “The dissent seems to acknowledge that [the] law of the

circuit doctrine would preclude the Jeffries IV panel from

contradicting the Jeffries III opinion, thus reaching the same

result as the majority.” Id. at 1493 n.12. The majority some-

how manages to squeeze blood from a turnip.

Second, to the extent Washington IV says something differ-

ent from Jeffries V, it is the most recent en banc opinion and

therefore clearly controls. See United States v. Heredia, 483

F.3d 913, 918-19 (9th Cir. 2007) (en banc) (recognizing that

a later en banc court may overrule an earlier en banc opinion).

The majority objects that Washington IV couldn’t have over-

ruled the “longstanding doctrine” that a three-judge panel may

overturn a prior panel’s published opinion under an exception

to the law of the case, maj. at 17669, but the doctrine in fact

never existed until today. It has no support in Jeffries V or any

other published opinion in our circuit.

Take the other two cases the majority cites. See maj. at

17666 (citing Mendenhall v. NTSB, 213 F.3d 464, 469 (9th

Cir. 2000) (“Mendenhall II”); Tahoe-Sierra Pres. Council,

Inc. v. Tahoe Reg’l Planning Agency, 216 F.3d 764, 786-87

(9th Cir. 2000) (“Tahoe IV”)). The majority claims these

cases support its new rule because both reversed “a prior pub-

lished appellate opinion as clearly erroneous under the excep-

tions to the law of the case” doctrine. Maj. at 17666. But

neither case contradicted the prior panel’s legal ruling and

therefore never disturbed the law of the circuit. See United

States v. Johnson, 256 F.3d 895, 916 (9th Cir. 2001) (en banc)

(Kozinski, J., concurring) (a legal statement isn’t law of the

circuit unless “it is clear that a majority of the panel has

17688 GONZALEZ v. ARIZONA

focused on the legal issue presented by the case before it and

made a deliberate decision to resolve the issue”).1

The later Mendenhall panel reversed an award of market-

rate attorney’s fees, Mendenhall II, 213 F.3d at 469 & n.3, but

didn’t overturn the prior panel’s statement that “a request

[ for] attorneys’ fees at a reasonable market rate . . . . is appro-

priate where there is a showing of bad faith,” Mendenhall v.

NTSB, 92 F.3d 871, 876 (9th Cir. 1996). Rather, it realized

that the prior panel had mistakenly applied a statute awarding

attorney’s fees to litigants who prevailed in court to someone

who had prevailed in an administrative proceeding. Menden-

hall II, 213 F.3d at 469. Because the later panel applied the

correct statute, it had no occasion to disturb the prior panel’s

construction of the other statute.

In Tahoe, both the earlier panel and the later panel applied

the rule that, in general, defendants must affirmatively plead

the statute of limitations in a filing with the court. See Levald,

Inc. v. City of Palm Desert, 998 F.2d 680, 686-87 (9th Cir.

1

While the majority ignores Johnson when exaggerating the preceden-

tial effect of two cases that didn’t alter the law of the circuit, it relies on

the Johnson concurrence in an attempt to characterize Washington IV’s

rule as the sort of “casual[ ]” statement “uttered in passing” that isn’t bind-

ing on later panels. Maj. at 17669-70. But the statement in Washington IV

was necessary to explain why the three-judge panel had to make a sua

sponte en banc call. 593 F.3d at 798 n.9. In any event, statements in en

banc opinions, as in Supreme Court opinions, must be taken far more seri-

ously than statements in three-judge panel opinions, even if they are not

strictly necessary to the result. See United States v. Baird, 85 F.3d 450,

453 (9th Cir. 1996) (“[W]e treat Supreme Court dicta with due deference

. . . .”). That’s because, like Washington IV’s rule, a statement in an en

banc opinion that’s not necessary to resolve the merits of the case often

“provides a supervisory function” to “three-judge panels and district

courts . . . . [and] thus constitutes authoritative circuit law.” Barapind v.

Enomoto, 400 F.3d 744, 751 n.8 (9th Cir. 2005) (en banc); see, e.g., Mil-

ler, 335 F.3d at 900; United States v. Hardesty, 977 F.2d 1347, 1348 (9th

Cir. 1992) (en banc) (per curiam); Atonio v. Wards Cove Packing Co., 810

F.2d 1477, 1478-79 (9th Cir. 1987) (en banc).

GONZALEZ v. ARIZONA 17689

1993). The prior panel had held that the plaintiffs’ claims

weren’t time-barred because, by “[f]ailing to plead affirma-

tively” any statute of limitations other than an irrelevant one,

the defendants couldn’t then “rely on any other.” Tahoe-

Sierra Pres. Council, Inc. v. Tahoe Reg’l Planning Agency,

34 F.3d 753, 756 (9th Cir. 1994) (“Tahoe III”). On remand,

the defendants filed an answer that pled the correct statute of

limitations, and the later panel held that the claims were there-

fore time-barred. Tahoe IV, 216 F.3d at 788-89. Like Menden-

hall, the later panel’s putative reversal of a prior panel didn’t

alter a binding statement of circuit law.2

Nor are Mendenhall and Tahoe the only cases on point. A

number of panel opinions hold that law of the circuit applies

to later panels in the same case. Old Person v. Brown, 312

F.3d 1036, 1039 (9th Cir. 2002), which Washington IV

quotes, is a good example. The Old Person panel explained

that it was bound by a prior opinion because “none of the

three exceptions” to law of the case applied, but it was careful

to point out that it also had “no discretion to depart from pre-

cedential aspects of our prior decision in Old Person I, under

the general law of the circuit rule.” Id.; see also Minidoka

Irrigation Dist. v. Dep’t of Interior, 406 F.3d 567, 574 (9th

Cir. 2005) (“[W]e are ‘bound by the opinion of the prior panel

as the law of the case. Also we have no discretion to depart

from precedential aspects of our prior decision in [Minidoka

I], under the general law-of-the circuit rule.’ ” (second alter-

ation in original)); accord Hilao v. Estate of Marcos, 103

F.3d 767, 772 (9th Cir. 1996) (“This court has twice rejected

these arguments in Estate I and Estate II. The published deci-

2

Tahoe IV said that it overturned Tahoe III’s “bare legal holding . . . that

the defendants forfeited the correct statute of limitations defense.” Tahoe

IV, 216 F.3d at 788. If that were truly Tahoe III’s holding, then the subse-

quent panel would have overturned law of the circuit. But it wasn’t. Tahoe

III said only that the defendants couldn’t rely on a statute of limitations

they hadn’t pled. Because the defendants hadn’t filed their answer, Tahoe

III couldn’t have considered whether they waived their statute of limita-

tions defense.

17690 GONZALEZ v. ARIZONA

sions in those cases are both the controlling law of the circuit

and the law of this case.” (citations omitted)).

Like Washington IV, these opinions explain that three-

judge panels are bound by prior panel opinions as law of the

circuit even if they’re not bound by those decisions as law of

the case. They also reconcile Mendenhall II and Tahoe IV

with our law of the circuit rule, for neither of those cases

departed from “precedential aspects” of the prior panel opin-

ions. But even if Mendenhall and Tahoe stood for what the

majority claims, our three-judge panel doesn’t have the power

to elevate them above Old Person, Minidoka or Hilao. If

“faced with such a conflict,” we “must call for en banc

review, which the court will normally grant unless the prior

decisions can be distinguished.” Atonio, 810 F.2d at 1479

(emphasis added).3

3

We’re not alone. Most of our sister circuits agree that three-judge pan-

els must follow prior published opinions in the same case as law of the cir-

cuit. See, e.g., Schiavo ex rel. Schindler v. Schiavo, 403 F.3d 1289, 1292

(11th Cir. 2005) (“Because our previous decision was published, the prior

panel precedent rule also applies to any holdings reached in the earlier

appeal.”); Swipies v. Kofka, 419 F.3d 709, 714 (8th Cir. 2005) (“[W]e held

in an earlier appeal in this case that Mr. Swipies possessed such an inter-

est. We are bound to follow this holding. It is not only the law of the case,

but the law of the circuit, i.e., a decision of another panel which only the

court en banc may overturn.” (citations omitted)); Af-Cap Inc. v. Republic

of Congo, 383 F.3d 361, 367 n.6 (5th Cir. 2004) (“The subsequent panel

would not only have to forego application of the law of the case doctrine,

but would also have to discard the well-established rule that circuit panels

are ‘bound by the precedent of previous panels absent an intervening . . .

case explicitly or implicitly overruling that prior precedent.’ ” (alteration

in original)); United States v. Alaw, 327 F.3d 1217, 1220 (D.C. Cir. 2003)

(“[T]hose issues are barred by law of the case doctrine . . . . In addition,

the law of the circuit doctrine applicable here prevents a new appellate

panel from declining to follow the legal rulings of the panel in a prior

appeal.”); Craft v. United States, 233 F.3d 358, 369 (6th Cir. 2000) (“Our

decisions in Craft I and in Cole are also law of the circuit. As we recently

stated, ‘One panel of this court may not overturn the decision of another

panel of this court—that may only be accomplished through an en banc

consideration of the argument.’ ”), overruled on other grounds by United

GONZALEZ v. ARIZONA 17691

Ultimately, this is all academic. There’s just no getting

around Washington IV’s holding that “even if” we were per-

mitted to revisit the prior panel’s opinion “under one of the

exceptions to law of the case,” we are “still . . . bound by that

published opinion as the law of the circuit” and have “no dis-

cretion to depart from [it].” 593 F.3d at 798 n.9. We can

debate the meaning of Jeffries all we want, but a unanimous

en banc court in Washington IV just resolved this very issue

against the majority’s position. The majority here audaciously

contradicts this en banc opinion.4

II.

Even if the majority were right that law of the circuit

doesn’t apply, Gonzalez I undisputedly binds us as law of the

States v. Craft, 535 U.S. 274 (2002); Irving v. United States, 162 F.3d

154, 160 (1st Cir. 1998) (en banc) (“In Irving I, a panel of this court

expressly defined the contours of the discretionary function exception.

From then on, that methodology represented both the law of the case and

the law of this circuit regarding the due application of the discretionary

function exception. . . . Indeed, when the United States asserted the discre-

tionary function defense in Irving II, the panel . . . took refuge in the law

of the circuit doctrine to dispense the argument . . . .” (citation omitted));

Pearson v. Edgar, 153 F.3d 397, 402 (7th Cir. 1998) (“Absent any inter-

vening Supreme Court decisions, Curtis and South-Suburban would be

binding precedent on this issue, and Curtis would also be the law of the

case.”). Such a lopsided verdict from our peers provides yet another rea-

son to question the wisdom of departing from our circuit’s well-settled

published opinion rule.

4

To the extent the majority suggests a three-judge panel can overrule

published opinions because they’re “clearly erroneous,” it also conflicts

with United States v. Contreras, 593 F.3d 1135 (9th Cir. 2010) (en banc).

Contreras reversed the portion of a panel opinion that had purported to

overrule several clearly erroneous published opinions because the panel

lacked authority to do so—even though the en banc court then adopted the

panel’s legal analysis. Id. at 1136; cf. State Oil Co. v. Khan, 522 U.S. 3,

20 (1997) (court of appeals was correct not to overrule an “infirm[ ]”

Supreme Court decision that it rightly predicted would be overturned by

the Supreme Court).

17692 GONZALEZ v. ARIZONA

case. The majority tries in vain to wriggle out from under

Gonzalez I’s conclusion that the NVRA doesn’t preempt

Proposition 200 by invoking the “clearly erroneous” excep-

tion to the law of the case. Maj. at 17665-66. But the clearly

erroneous bar is a tall one to hurdle: If “it is plausible to find

that” the NVRA doesn’t preempt Proposition 200, “the hold-

ing in [Gonzales I] cannot be deemed clearly erroneous.” Les-

lie Salt Co. v. United States, 55 F.3d 1388, 1394 (9th Cir.

1995). “[I]t is incumbent upon [plaintiffs] to convince us not

only that the majority decision in [Gonzales I] was wrong, but

that it was clearly wrong.” Merritt, 932 F.2d at 1322; see also

Jeffries V, 114 F.3d at 1489. The majority fails to carry this

heavy burden and materially weakens the standard for all

future cases by pretending that it does.

A.

According to the majority, the Gonzalez I panel’s “conclu-

sion was rooted in a fundamental misreading of the statute.”

Maj. at 17664 (emphasis added). “Reasoning from a funda-

mental misreading of the statute, the prior panel reached a

conclusion that was clear error.” Id. at 17665 (emphasis

added). But we don’t examine prior panels’ reasoning. We

must follow Gonzales I unless the “decision . . . is so clearly

incorrect that we are justified in refusing to regard it as law

of the case.” Merritt, 932 F.2d at 1321 (emphasis altered); see

Christianson v. Colt Indus. Operating Corp., 486 U.S. 800,

817 (1988) (“[T]he law of the case turns on whether a court

previously ‘decide[d] upon a rule of law’ . . . not on whether,

or how well, it explained the decision.” (second alteration in

original)).

We might “scrutinize the merits . . . with greater care” if

Gonzalez I lacked any “analysis reflecting the authorities or

argument which led [it] to the rule [it reached].” United States

v. Houser, 804 F.2d 565, 568 (9th Cir. 1986). But the law of

the case doctrine doesn’t allow us to assume that poor reason-

ing begets clear error. Indeed, we’ve held that a panel’s fail-

GONZALEZ v. ARIZONA 17693

ure to “expressly address [a] claim in its opinion”—and

corresponding failure to offer any reasons for its resolution of

that claim—isn’t clearly erroneous. Leslie Salt, 55 F.3d at

1393.

A panel’s faulty reasoning doesn’t necessarily consign its

conclusion to the trash heap; most conclusions can be arrived

at through multiple chains of reasoning. And, although “pan-

els will occasionally find it appropriate to offer alternative

rationales,” Johnson, 256 F.3d at 914 (emphasis added),

they’re not required to do so. Thus, the existence of perceived

holes in a prior panel’s stated rationale doesn’t preclude the

possibility that the panel had unstated reasons leading it to the

same conclusion. It certainly doesn’t mean that the result the

panel reached is incorrect, as it may have reached the correct

result for the wrong reason.5 When we say that a panel’s hold-

ing is clearly wrong, what we’re talking about is the rule of

law it announces, not the method by which it adopts that rule.6

This distinction doesn’t matter here because Gonzalez I

wasn’t clearly erroneous in either reasoning or result. Let’s

5

This principle also informs our review of district court judgments. “In

the review of judicial proceedings the rule is settled that, if the decision

below is correct, it must be affirmed, although the lower court relied upon

a wrong ground or gave a wrong reason.” Thos. P. Gonzalez Corp. v. Con-

sejo Nacional de Produccion de Costa Rica, 614 F.2d 1247, 1256 (9th Cir.

1980).

6

Focusing on a panel’s reasoning defeats the fundamental purpose of

law of the case doctrine—protecting the court and the parties from the bur-

den of repeated argument by pertinacious litigants—by encouraging the

parties to relitigate their case. See 18B Charles Alan Wright, Arthur R.

Miller & Edward H. Cooper, Federal Practice and Procedure § 4478 at

667 (2d ed. 2002). Such relitigation can slow decisionmaking to a glacial

pace, which is what happened to administrative agencies when judges

began to allow litigants to challenge the reasons the agencies gave for the

new regulations they proposed. See, e.g., Thomas O. McGarity, Some

Thoughts on “Deossifying” the Rulemaking Process, 41 Duke L.J. 1385,

1385-86, 1400-03 (1992); M. Elizabeth Magill, Agency Choice of Policy-

making Form, 71 U. Chi. L. Rev. 1383, 1390-91 & n.17 (2004).

17694 GONZALEZ v. ARIZONA

start with Gonzales I’s statement that “[t]he NVRA mandates

that states either ‘accept and use the mail voter registration

form prescribed by the [Election Assistance Commission,]’

or, in the alternative, ‘develop and use [their own] form,’ as

long as the latter conforms to the federal guidelines.” Gonza-

lez I, 485 F.3d at 1050 (third alteration in original) (citations

omitted). The majority takes issue with this passage because

the NVRA requires states to accept and use both the federal

and state forms; ergo, Gonzalez I misconstrued the statute.

Maj. at 17664. But “the word ‘or’ is often used as a careless

substitute for the word ‘and’; that is, it is often used in phrases

where ‘and’ would express the thought with greater clarity.”

De Sylva v. Ballentine, 351 U.S. 570, 573 (1956). Indeed, it

is well recognized that “or” can have multiple meanings, with

the “exclusive or”—meaning one or the other but not both—

being largely useful in symbolic logic rather than common

parlance. Wikipedia, Exclusive or, http://en.wikipedia.org/

wiki/Exclusive_or (last visited Aug. 21, 2010).7

7

Wikipedia gives the following example to illustrate the difference

between the exclusive and the inclusive “or”:

[I]t might be argued that the normal intention of a statement like

“You may have coffee, or you may have tea” is to stipulate that

exactly one of the conditions can be true. Certainly under many

circumstances a sentence like this example should be taken as

forbidding the possibility of one’s accepting both options. Even

so, there is good reason to suppose that this sort of sentence is not

disjunctive at all. If all we know about some disjunction is that

it is true overall, we cannot be sure that either of its disjuncts is

true. For example, if a woman has been told that her friend is

either at the snack bar or on the tennis court, she cannot validly

infer that he is on the tennis court. But if her waiter tells her that

she may have coffee or she may have tea, she can validly infer

that she may have tea. Nothing classically thought of as a dis-

junction has this property. This is so even given that she might

reasonably take her waiter as having denied her the possibility of

having both coffee and tea.

....

There are also good general reasons to suppose that no word

in any natural language could be adequately represented by the

binary exclusive “or” of formal logic.

GONZALEZ v. ARIZONA 17695

Legislatures—which presumably choose statutory language

with care—have used “or” conjunctively instead of as a dis-

junctive, exclusive “or.” See, e.g., Chemehuevi Tribe of Indi-

ans v. Fed. Power Comm’n, 420 U.S. 395, 417-18 (1975)

(“utilizing the surplus water or water power”); Swearingen v.

United States, 161 U.S. 446, 450 (1896) (“obscene, lewd or

lascivious”); see also Steven Wisotsky, How To Interpret

Statutes—Or Not: Plain Meaning and Other Phantoms, 10 J.

App. Prac. & Process 321, 326-27 (2009). And phrases that

seem obviously disjunctive like “or, in the alternative” are

sometimes used conjunctively. See H.W. Fowler, A Dictio-

nary of Modern English Usage 147 (2d ed. 1965). Thus, the

Gonzalez I panel could have meant that a state may rely

exclusively on the federal form or, in the alternative, also

develop a state form.8 This is a perfectly accurate description

of the NVRA.

The majority protests that Gonzalez I couldn’t have used

“or” conjunctively because “such an interpretation would be

contrary to the prior panel’s logic.” Maj. at 17664. But it’s

only contrary to the majority’s interpretation of the prior

panel’s logic—and the majority begins its interpretation by

assuming Gonzalez I misread the statute. This is known as

begging the question. If we begin with the presumption that

unanimous three-judge panels don’t misread statutes, the “or”

can easily be construed conjunctively, to support the conclu-

sion that Gonzalez I interpreted the NVRA correctly. Cf.

Wikipedia, Exclusive or, http://en.wikipedia.org/wiki/Exclusive_or (last

visited Aug. 21, 2010).

8

Our own precedent shows that “and” and “or” can sometimes be used

interchangeably. For example, in MacDonald v. Pan American World Air-

ways, Inc., the majority construed “and” in a contract as “or” despite a par-

ticularly eloquent dissent. 859 F.2d 742, 744-45 (9th Cir. 1988); see id. at

746 (Kozinski, J., dissenting). MacDonald is law of the circuit as to the

“and” versus “or” issue and stands in the way of the majority’s claim that

the Gonzalez I panel somehow misread the statute.

17696 GONZALEZ v. ARIZONA

United States v. Brown, 459 F.3d 509, 525 (5th Cir. 2006)

(“[I]f we begin with the assumption that [the defendant] is

guilty, the documents can be read to support that assumption.

But if we begin with the proper presumption that [he] is not

guilty . . . , we must conclude the evidence is insufficient

. . . .”).

The other two quotes to which the majority points support

its argument even less. Gonzalez I states that section 1973gg-

7(b) of the NVRA “prohibits states from requiring that [their]

form be notarized or otherwise formally authenticated,” and

“permits states to ‘require[ ] such identifying information . . .

as is necessary to enable . . . election official[s] to assess the

eligibility of the applicant.’ ” 485 F.3d at 1050 (alterations in

original). The majority argues that Gonzalez I “misread” the

statute because the “portions of the NVRA that relate to the

Federal Form . . . are directed solely at the [Election Assis-

tance Commission], not the states.” Maj. at 17664. But these

instructions to the Commission do apply to the states through

section 1973gg-4(a)(2), which allows states to “develop and

use” their own form if it “meets all of the criteria stated in

section 1973gg-7(b).” Gonzalez I reads the statute correctly;

it is the majority here that is mistaken.

B.

Even if the majority’s reasoning is wrong, its conclusion

that Gonzalez I clearly erred could still be correct if the

NVRA must be read to preempt state law. But it’s not enough

for the majority to find a construction of the statute it likes

better. After all, many statutes can plausibly be construed two

different ways, neither of which can be said to be clearly

wrong. See, e.g., Chevron, U.S.A., Inc. v. Natural Res. Def.

Council, 467 U.S. 837, 843 (1984) (“[I]f the statute is silent

or ambiguous with respect to the specific issue, the question

for the court is whether the agency’s answer is based on a per-

missible construction of the statute.” (emphasis added)). To be

clearly erroneous, the prior panel’s construction must be so

GONZALEZ v. ARIZONA 17697

flawed that it could not pass the second step of the Chevron

test, had that construction been adopted by an administrative

agency. See id. at 844 (“[A] court may not substitute its own

construction of a statutory provision for a reasonable interpre-

tation made by the administrator of an agency.” (emphasis

added)).

In this case, the text of the NVRA doesn’t “directly

address[ ] the precise question at issue,” id. at 843, namely

whether states can ask for supplemental proof of citizenship.

The statute says that “[e]ach State shall accept and use the

mail voter registration application form prescribed by the

[Election Assistance Commission].” 42 U.S.C. § 1973gg-

4(a)(1). It likewise requires “[a]cceptance of completed voter

registration application forms” at state and local government

offices, which must be transmitted “to the appropriate State

election official.” 42 U.S.C. § 1973gg-5(a)(4)(iii). The statute

doesn’t obviously prohibit supplemental state requirements,

and both preemptive and non-preemptive constructions of

“accept” and “use” are plausible. The prior panel’s construc-

tion thus easily passes the Chevron test.

The majority believes that, by requiring states to “accept

and use” the federal form “for the registration of voters in

elections for Federal office,” 42 U.S.C. § 1973gg-4(a)(1), the

NVRA precludes states from imposing additional require-

ments. Maj. at 17654, 17665. But neither “accept” nor “use”

has such a preclusive meaning; it’s entirely possible to accept

and use something for a particular purpose, yet not have it be

sufficient to satisfy that purpose. Just go to any liquor store

that takes personal checks: They will happily accept and use

your check, but only after you provide ID showing that you’re

authorized to write it. A minute’s thought comes up with end-

less such examples: passport and visa; car registration and

proof of insurance; boarding pass and picture ID; eggs and

ham. Those who accept and use the former often also require

the latter.

17698 GONZALEZ v. ARIZONA

The majority’s contention that “accept and use” must be

read preclusively “[i]n the context of the NVRA,” or “under

an Elections Clause framework,” maj. at 17665, is unconvinc-

ing because its understanding of “use” conflicts with that

word’s plain English meaning. As the Supreme Court has

observed,

Webster’s defines “to use” as “[t]o convert to one’s

service” or “to employ.” Webster’s New Interna-

tional Dictionary 2806 (2d ed. 1950). Black’s Law

Dictionary contains a similar definition: “[t]o make

use of; to convert to one’s service; to employ; to

avail oneself of; to utilize; to carry out a purpose or

action by means of.” Black’s Law Dictionary 1541

(6th ed. 1990). Indeed, over 100 years ago we gave

the word “use” the same gloss, indicating that it

means “ ‘to employ’ ” or “ ‘to derive service from.’ ”

Astor v. Merritt, 111 U.S. 202, 213 (1884).

Smith v. United States, 508 U.S. 223, 228-29 (1993) (alter-

ations in original). To “use” an object is simply to derive ser-

vice from or utilize it. The NVRA doesn’t say that states must

treat the federal form as a complete application. It might pre-

clude a state from requiring an applicant to provide yet again

the information that is already on the federal form, but that’s

not the case here. There’s no question that Arizona accepts

and uses the federal form for the information contained in it.

Arizona only asks for proof of citizenship in addition to the

form in order to complete the registration process.

Nor is the “accept and use” requirement necessarily con-

verted into a broad preemption provision by the NVRA’s gen-

eral statement that “notwithstanding any other Federal or

State law, in addition to any other method of voter registration

provided for under State law, each State shall establish proce-

dures to register to vote in elections for Federal office.” 42

U.S.C. § 1973gg-2(a); see maj. at 17654. That provision

merely requires states to implement the NVRA regardless of

GONZALEZ v. ARIZONA 17699

any contrary legal authority. It doesn’t alter the substantive

scope of the statute.

The only thing the NVRA expressly prohibits states from

requiring is “notarization or other formal authentication.” 42

U.S.C. § 1973gg-7(b)(3). The inclusion of a specific prohibi-

tion is a strong indication that other prohibitions weren’t

intended. See United States v. Cabaccang, 332 F.3d 622, 630

(9th Cir. 2003); see also U.S. Term Limits, Inc. v. Thornton,

514 U.S. 779, 793 n.9 (1995).

Moreover, the NVRA expressly authorizes states to require

“such identifying information . . . as is necessary to enable the

appropriate State election official to assess the eligibility of

the applicant.” 42 U.S.C. § 1973gg-7(b)(1). This provision

can plausibly be read as authorizing the type of “identifying

information” that Arizona requires. The majority holds that

this passage is part of a comprehensive framework preventing

states from requiring proof of citizenship, but overlooks the

possibility that such proof may be “necessary to enable” Ari-

zona to assess eligibility. See maj. at 17652-53.

Other states also require supplemental information and the

current National Voter Registration Form, available at

http://www.eac.gov/assets/1/Page/National Mail Voter Regis-

tration Form – English.pdf (“Registration Form”), seamlessly

accommodates them. The current form includes a box labeled

“ID Number” that directs applicants to “[s]ee item 6 in the

instructions for your state.” Item 6, in turn, catalogs the state-

by-state requirements each applicant must satisfy before the

state will “accept and use” the federal form. Just like Arizona,

many states require applicants to include proof of eligibility.

In Alabama, “[y]our social security number is requested.”

Registration Form at 3. Connecticut requires a “Connecticut

Driver’s License Number, or if none, the last four di

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