As the majority belatedly acknowledges 47 pages 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 states, at least to some extent, to require their citizens to present evidence of citizenship when registering to vote.” Gonzalez v. Arizona.[...] 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 Gonzalez I was correctly decided, I dissent from the majority’s conclusion that the NVRA preempts Arizona’s voter registration requirement.
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.” Miller, 335 F.3d at 900. And this instance is not truly an exception 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.