More than a week after oral argument in Shelby County v. Holder, the scorn expressed by Chief Justice Roberts, Justice Scalia and others towards the Voting Rights Act continues to dominate the news.  Whether it be Justice Scalia’s statement that the Voting Rights Act survives only because of the self-perpetuating power of “racial entitlements” or Chief Justice Roberts’ dubious claim that the state of voting discrimination may be worse in Massachusetts than Mississippi, there has been an outpouring of coverage highlighting just how the weak the arguments against the Voting Rights Act are.  As Linda Greenhouse put it, it would be “an error of historic proportions” – akin to Plessy and other travesties in Supreme Court history – to strike down the Voting Rights Act when the Constitution expressly gives to Congress the power to eradicate racial discrimination in voting.  With the focus on whether the Court will strike down our nation’s most iconic civil rights law, there has been virtually no attention to the fact that, when the Justices convene again on March 18th, the Supreme Court will hear oral argument in a second major voting rights case, Arizona v. Inter Tribal Council.  But Inter Tribal Council is a very important case that will have huge implications for Congress’ power to protect the right to vote and to enact new, needed reforms in federal elections.

Inter Tribal Council concerns the validity of an Arizona law, adopted by the voters in 2004, requiring citizens to submit satisfactory documentary proof of citizenship in order to register to vote.  If Arizona succeeds in its appeal, the effect will be to gut another critical voting rights statute, the National Voter Registration Act, designed to remove state barriers to voter registration in federal elections.  In Inter Tribal Council, as in Shelby County, conservatives are ignoring the express powers that the Constitution gives to Congress to protect the right to vote, a fundamental right recognized throughout the Constitution’s text.   

The Inter Tribal Council case concerns the scope of Congress’ powers under the Elections Clause contained in Article I, Section 4 of the Constitution, which gives to Congress the express power to “make or alter” state law regulating the time, place, and manner of federal elections.  As CAC’s brief, co-authored with the Brennan Center for Justice and filed on behalf of prominent constitutional law professors, including Pulitzer-Prize winning historian Jack Rakove, explains, the Founders of the Constitution inserted this provision in the Constitution to ensure that the American people would have the right to freely select representatives of their choice without interference by the states.  James Madison stressed the importance of the federal role in securing equal voting rights: “Should the people of any state by any means be deprived of the right of suffrage, it was judged proper that it should be remedied by the general government.”  Because the right to vote was an “important and sacred” right, the Founders of the Constitution explicitly gave to Congress the power to “secur[e] to the people their equal rights of election.”  The text and history of the Elections Clause shows that the Constitution’s protection for the right to vote dates all the way back to the Constitution’s Founding.  Concern that states would not respect the right to vote is a theme that runs through our entire constitutional history.  

In enacting the National Voter Registration Act, Congress used its explicit power to “make or alter” state law to provide a simple, uniform method of voter registration that would guarantee access to the ballot for all eligible voters in federal elections.  Congress did not want states piling on additional restrictions on the voter registration process that would make it more difficult for Americans to register to vote.  To that end, Congress provided for a single “Federal Form” to be used for mail-in voter registration for federal elections throughout the nation.  The issue in Inter Tribal Council is whether, under the Constitution, Congress can establish a nationwide system of voter registration for federal elections or whether states retain the authority to add its own restrictions.  Despite the Constitution’s express grant of power to Congress over the time, place, and manner of federal elections, Arizona argues that, because it has the power under the Constitution to set qualifications for voting in federal elections, it may lawfully require citizens who register to vote in federal elections to submit satisfactory documentary proof of citizenship.   Invoking the principle of constitutional avoidance, Arizona argues that the National Voter Registration Act must be narrowly construed.   In its view, the State’s sovereign right to register those it deems properly-qualified voters trumps Congress’ power to protect the right to vote in federal elections.     

This should be an open and shut case.  The National Voter Registration Act does not permit states to enact burdensome voter registration laws like Arizona’s, which can disenfranchise citizens and deny them their constitutional right to vote.  To secure to Americans their federal constitutional right to vote, the NVRA mandates that “each State shall accept and use the mail voter registration application form prescribed by the Federal Elections Commission . . . for the registration of voters in elections for federal office,” a form that requires registrants to assert, under penalty of perjury, that they are U.S. citizens, but does not require documentary proof of citizenship.  Under the Constitution, it is Congress, not the states, that has final say over the rules applicable to voter registration in federal elections.   As the text and history of the Elections Clause shows, because of distrust of the states concerning federal elections, the Founders of the Constitution gave Congress the power to override restrictive state laws, like Arizona’s, regulating the time, place, and manner of federal elections. 

Contrary to Arizona’s claim, the National Voter Registration Act does not all interfere with the state’s authority to regulate the qualifications of voters in federal elections.  Consistent with more than a century of Elections Clause precedent, the Act regulates the process of voter registration – a matter conceptually separate and distinct from the setting of voter qualifications – that falls squarely within Congress’ power under the Elections Clause to regulate the manner of elections.  Indeed, the Act specifically recognizes citizenship as a qualification for voting; it simply does not permit Arizona or any other state to require documentary proof of citizenship as a pre-condition on voter registration.  Arizona, of course, is free to urge Congress to amend the Act to make it more to its liking, but it may not simply ignore Congress’ express power, established in the Elections Clause, to “make or alter” state law in order to protect the right to vote in federal elections and provide a uniform means of ensuring that federal elections are decided, as the Constitution provides, by the people.    

Both Shelby County and Inter Tribal Council pose a fundamental question of constitutional fidelity: will the Court’s conservative Justices honor the Constitution’s text and history that gives Congress broad powers to protect the right to vote from state infringement?  Beginning at the Founding, continuing through Reconstruction and beyond, it has been a pillar of our constitutional system that the right to vote is a fundamental aspect of our birthright as American citizens and that Congress has broad power to protect the right to vote and give meaning to our Constitution’s promise of rule “by the people, of the people, and for the people.”  Inter Tribal Council, like Shelby County, test whether conservative Justices will pay heed to these fundamental principles or look for ways to license voting discrimination and disenfranchisement.