Retired O’Connor Still Making Trouble

A divided Ninth Circuit panel ruled on Tuesday that Arizona’s Proposition 200, adopted by the people of the state in 2004 to protect the integrity of elections, is invalid. Prop 200 requires voters to provide proof of eligibility (i.e., citizenship) to register and proof of identity to vote. Against precedent, statutory language, and logic, the 2–1 majority insisted that these eminently reasonable state requirements had been superseded by a federal statute, the National Voter Registration Act (NVRA), which does not mandate them.

The decision in the case, Gonzalez v. Arizona, was not actually rendered by Ninth Circuit judges, only one of whom agreed with it. As Ed Whelan notes in a Bench Memos post, the deciding vote was cast by the supposedly retired Supreme Court justice Sandra Day O’Connor. Justice O’Connor claims the power to sit by designation on cases in the federal appellate and district courts, despite the fact that she is now an overt political activist. Under the rules of judicial ethics, that ought to sideline her as a jurist. But of course, a politician can get a lot more accomplished wearing a robe.

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