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.”
If Arizona’s reading of the law were to prevail, the federal form, Scalia wrote, “ceases to perform any meaningful function, and would be a feeble means of ‘increas[ing] the number of citizens who register to vote in elections for Federal office.”
The “fairest reading of the statute is that a state-imposed requirement of evidence of citizenship not required by the Federal Form is ‘inconsistent with’ the NVRA’s mandate that States ‘accept and use’ the Federal Form,” Scalia wrote.
Scalia, however, noted that Arizona could “request anew that the EAC include such a requirement among the Federal Form’s state-specific instructions, and may seek judicial review of the EAC’s decision under the Administrative Procedure Act,” suggesting that those states intent on adding more hurdles to voting have an avenue to do so.
The case reached the high court by way of the U.S. Court of Appeals for the Ninth Circuit, which held that Arizona’s Proposition 200, creating additional requirements for voting, conflicted with the NVRA.
Gabriel "Jack" Chin, professor of law at UC Davis School of Law told ACSblog, "The Court's confirmation of the broad regulatory powers of Congress under the elections clause was a relief; the justices should recognize that the elections clause, as I and other law professors have argued, is a basis for upholding Section 5 of the Voting Rights Act in the Shelby County case."
Chin added, "There is much bad news, however. The seven justices in the majority held that the elections clause does not extend to qualifications for voting, only to voting procedures; dissenters Alito and Thomas would certaintly agree. This seems to slam the door on proposed federal laws promoting voting by people with convictions. (See, for example Section 501 of the Voter Empowerment Act of 2013, a provision that has long been championed by Rep. John Conyers.) In addition, the majority suggested that upon the request of Arizona, the federal Election Assistance Commission might well be required to amend the form used in Arizona to require applicants to provide additional information about documentation of citizenship. If this broad hint bears fruit, then Arizona's efforts at voter suppression may be delayed rather than prevented."
Spencer A. Overton, professor of law at George Washington University School of Law, in a post of “quick informal thoughts” on the case, said for now it represents “a win for voting access supports. “AZ evidence-of-citizenship requirement preempted by federal law’s mandate that states must accept and use federal form …. It is also a win because it is not a clear affirmation of the movement to enact more restrictions on voting.”
Overton, however, noted some troubling aspects of the decision, including the fact that Scalia wrote that Arizona officials could “request that EAC add citizenship info to the federal form, and if that is rejected, AZ can bring suit under the Administrative Procedure Act. Court could determine mere oath insufficient for AZ to effectuate citizenship requirement, and order EAC to include AZ evidence of citizenship on federal form.”
Constitutional Accountability Center President Doug Kendall lauded the Court’s opinion. He noted that his group’s brief in the case had urged the high court to recognize “that the only purpose of the Elections Clause is to displace state laws, and therefore Congress should be presumed to have displaced states when it acts.”
Wendy Weiser, democracy program director at the Brennan Center for Justice, also applauded the opinion, but noted “more work remains to be done. In 2012, dozens of states passed laws making it harder to vote, and more voting restrictions have been introduced this year.”
Weiser also notes that the high court has yet to issue its opinion in the high-profile challenge to the Voting Rights Act. In Shelby County v. Holder, the justices are considering a constitutional challenge to the Act’s integral enforcement provision, Section 5. U.S. Rep. John Lewis (D-Ga.) spoke on the importance the VRA and the need to continue fighting for full equality in a featured address at the 2013 ACS National Convention.