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The Roberts Court Meets the Right to Vote, Part II

March 18, 2013

In a spirited oral argument this morning, the Justices debated whether Arizona may require individuals to submit satisfactory documentary proof of citizenship in order to register to vote in federal elections.  The question before the Court in Arizona v. Inter Tribal Council is whether the National Voter Registration Act (often called the “Motor Voter” law), adopted by Congress in 1993 to streamline voter registration and ease burdens on the right to vote in federal elections, permits Arizona to add to the requirements provided by Congress in the NVRA.  This should not be a hard question.  Congress passed the Act using its express constitutional authority to “make or alter” state election law, establishing a single “Federal Form” for purposes of mail-in registration in federal elections and requiring states to “accept and use” the Federal Form.  The NVRA specifically recognizes that citizenship is an appropriate voter qualification and requires individuals to attest, under penalty of perjury, that they are citizens before they may register to vote. 

A majority of the Court, including Justice Anthony Kennedy, appeared to recognize that the entire point of having a single Federal Form was to streamline the voter registration process, and that approving Arizona’s law would pave the way for a patchwork of 50 state forms.  In his questioning of Arizona Attorney General Tom Horne, Justice Kennedy pointed out that, if states could add new requirements to those contained on the Federal Form, “the Federal [F]orm . . . is not worth very much” and Congress’ regulation of voter registration would effectively be gutted.  “The whole utility of the single form is missing – is gone.”  While Justice Kennedy was skeptical of the Ninth Circuit’s stricter preemption standard, he seemed disposed to think that the Arizona law conflicted with the NVRA.  In that, he found support from the Court’s more liberal Justices.  Justice Elena Kagan suggested that, if the states can add new requirements, “then the Federal [F]orm just becomes another hoop to jump through,” exactly contrary to Congress’ purpose of relieving burdens on voter registration.  Likewise, Justice Sonia Sotomayor challenged Arizona’s Attorney General to explain “how you’re accepting and using [the Federal Form] when you’re refusing to register someone when they do exactly what the Federal law permits them to do.”  Justice Ruth Bader Ginsburg stressed that “Congress did specify how citizenship was to be handled,” providing for “a signed attestation . . . subject to the penalty of perjury.  So it’s not as though the Federal Form didn’t relate to citizenship.”

The conservative response to this attack on the Arizona law was both mixed and muddled.  At the beginning of the argument, Justice Scalia argued with Attorney General Horne’s about whether Arizona should have sued the federal government for failing to provide for documentary proof of citizenship in the Federal Form itself, suggesting that Justice Scalia was inclined to strike down  Arizona’s attempt to take the law into its own hands.  But as the argument went on, Justice Scalia seemed increasingly inclined to rule for Arizona based on his judgment that a certification of citizenship made under oath and penalty of perjury is somehow “not proof at all.”  In a rather amazing statement for a judicial officer, Justice Scalia opined: “So it’s under oath.  Big deal.  If . . . you’re willing to violate the voting laws, I suppose you’re willing to violate the perjury laws.”   Chief Justice Roberts, meanwhile, seemed fixated on the fact that the federal government allowed Louisiana to include different type of state identification requirement in the Federal form used in Louisiana.  But, as both Patricia Millett, the seasoned Supreme Court advocate representing the plaintiffs, and Sri Srinivasan, the Deputy United States Solicitor General, responded, the fact that the federal government approved of Louisiana’s requirement is a critical distinction. None of the Court’s conservatives offered any real answer to the arguments, made by Justice Kennedy and others, that permitting more state regulation would conflict with the NVRA’s aim of easing barriers to voter registration and simplifying the registration process.

Today’s argument touched only briefly on the Constitution, but when Justice Kennedy asked Millett about what the constitutional standard for review of legislation enacted by Congress under the Elections Clause, she hit the answer of the park, explaining that the Constitution's Elections Clause was unique in that it (1) granted states the power to set time, place and manner rules for federal elections but also (2) granted the federal government the express power to make or alter these state rules.  Thus, the only reason Congress acts under the Elections Clause is to displace state-created barriers -- such as the Arizona law at issue here -- to exercising one of our most cherished constitutional rights.  These arguments are fleshed out in more detail in the brief Constitutional Accountability Center filed with Brennan Center on behalf of historians including Pulitzer Prize winner Jack Rakove.

 The question now is whether the Justices will respect Congress’ express power to protect the right to vote in federal elections or allow Arizona, and other states, to frustrate it.

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