ACSBlog

Editor's note: This post has been updated to include comment from UC Davis School of Law Professor Gabriel "Jack" Chin.

by Jeremy Leaming

The U.S. Supreme Court voting 7-2 dealt a setback to Arizona’s rigid voter ID law, saying the state’s additional citizenship requirements were preempted by federal elections laws.

The setback could be seen as a victory of sorts for opponents of state efforts aimed at crafting and implementing more hurdles to voting, ones that disproportionately impact minorities, poor people, the elderly and students. Justice Antonin Scalia’s opinion, however, left the door open for Arizona and other states to try to alter the National Voter Registration Act (NVRA, also known as motor-voter) to impose stricter requirements to vote. 

In Arizona v. Inter Tribal Council, the majority led by Scalia found that Arizona’s Proposition 200 provision requiring elections officials to “reject any application for registration that is not accompanied by satisfactory evidence of United States citizenship” must “give way” to the federal form created by the Election Assistance Commission (EAC). The NVRA requires states to “accept and use” that federal form. As Scalia noted, the federal form “does not require documentary evidence of citizenship; rather it requires only that an applicant aver, under penalty of perjury, that he is a citizen.” Scalia was joined by Chief Justice John Roberts and Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan.

The NVRA and the EAC were created pursuant to the Constitution’s Elections Clause (Article I, Section 4), which states, “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations ….”

Scalia wrote that the “textual question” in the case centered on whether the NVRA’s requirement that states “accept and use” the federal form preempts Arizona’s state-law requirement that officials reject “the application of a prospective voter who submits a completed Federal Form unaccompanied by documentary evidence of citizenship.”

Arizona officials argued that its reading of the federal law allowed it to reject a federal form if it failed to include the additional information set out in the state law.

Scalia said it “is improbable” that the federal law “envisions a completed copy of the form it takes such pains to create as being anything less than ‘valid.’”

He continued, “States retain the flexibility to design and use their own registration forms, but the Federal Form [created by the EAC]  provides a backstop: No matter what procedural hurdles a State’s own form imposes, the Federal Form guarantees that a simple means of registering to vote in federal elections will be available.”

by Jeremy Leaming

The federal bench with the backing of lots of money from corporate America is unsurprisingly increasingly favorable to corporate interests and that fact is not likely to change unless balance is brought to the courts, Sen. Elizabeth Warren said at the 2013 ACS National Convention.

Sen. Warren ripped into the conservative movement that has spent 30-some years helping to craft courts that are kind to business interests at the great detriment to individual liberties.

“Here in Washington, power is not balanced,” Warren said on the opening day of the 2013 ACS Convention. “Instead, power is becoming more concentrated on one side. There are powerful, deep-pocketed corporate interests lined up to fight to protect their privilege and to resist any change that would limit corporate excesses.”

And corporate interests are spending boatloads of money to keep the federal courts on their side.

“These big corporate interests are savvy,” Warren continued. “They fight every day on Capitol Hill and in the agencies, devoting enormous resources to the task of bending legislation to benefit themselves.  But they also devote enormous resources toward influencing the courts.

“Why? Because they know that influencing those who interpret 

the law is another extremely effective way to achieve their goals.  In our democracy, when we write our laws, reasoned debate, public opinion, and political accountability are all factors that can thwart the efforts of powerful interests.”

And the money spent has paid off. Warren, citing an ACS study noted that as of 2008 the federal appeals courts have been “dominated by judges whose previous professional experience is generally corporate or prosecutorial.”

Though President Obama has placed some judges on the bench not in this trend, such as U.S. District Court Judge Edward Chen, he has nonetheless continued to nominate persons with heavy corporate backgrounds.

Diversity of backgrounds needs to be a priority if the federal courts are going to provide impartial justice, instead of creating outcomes constantly favorable to corporate interests.