BRENNAN CENTER FOR JUSTICE

II.
DOCUMENTARY PROOF OF CITIZENSHIP TO REGISTER OR VOTE
A. Background
In general, except for certain local elections, a person must be a U.S. citizen over eighteen years old to
be eligible to participate in American elections. A voter typically establishes her eligibility by swearing
an affidavit, under penalty of perjury, that she is a U.S. citizen of voting age and meets all the other
eligibility requirements of her state (such as residency and lack of disqualifying criminal convictions). 112
A non-citizen or other ineligible person who falsely claims eligibility and either registers to vote or
votes is subject to serious criminal penalties—including five years in prison and $10,000 in fines under
federal law 113 —and also deportation.
Until recently, no state has ever required any voter to produce documentary proof of citizenship—or
age or any other component of eligibility—to participate in elections. In 2004, however, as part of a
broad-ranging ballot initiative, called Proposition 200, regulating the treatment of immigrants, Arizona
for the first time passed a law requiring prospective voters to present documentary proof of citizenship
in order to register to vote. 114 The Arizona law, which went into effect before the 2006 elections,
specifically directs election officials to reject voter registration
applications that are not accompanied by one of several specified
As of the start of this legislative
citizenship documents, 115 thus denying those individuals the
session, only two states had ever ability to vote. Until this year, this Arizona law was an outlier,
sought to require documentary unique in the country.
proof of citizenship for voter
Arizona’s proof of citizenship law sparked significant controversy
registration or voting.
from the outset. In March 2006, the U.S. Election Assistance
Commission, a bipartisan federal agency charged with regulating
certain election administration matters, voted to reject Arizona’s
request to amend the federal voter registration application form to reflect the state’s new rules. 116 Shortly
afterward, the law was challenged in federal court; 117 it has been wrapped up in litigation ever since.
In the most recent ruling in that case, a panel of the U.S. Court of Appeals for the Ninth Circuit held
that the proof of citizenship requirement conflicts with federal law—specifically, the National Voter
Registration Act of 1993. 118 The Ninth Circuit agreed to rehear that case en banc, and oral argument
was held before a larger panel on June 21, 2011. The court has not yet issued its decision.
Georgia became the second state to pass a proof of citizenship law in 2009, requiring prospective
voters to provide documentary proof of citizenship in order to register to vote. 119 This came after the
Department of Justice blocked implementation of an earlier Georgia policy for checking the citizenship
of registered voters as unreliable and discriminatory. 120 The Department of Justice ultimately approved
of Georgia’s proof of citizenship law in April 2011, 121 but the state has not yet put the law into effect.
Thus, as of the start of this legislative session, only two states had ever sought to require documentary
proof of citizenship for voter registration or voting, only one had implemented such a requirement, and
the legality of the requirement had not yet been resolved (and still is not resolved) in the courts.
16 | Brennan Center for Justice