Arizona Gets Rare Smackdown From Justice Scalia

The conservative jurist, who has sided with the state in many recent cases, nonetheless wrote a majority opinion upholding broad federal power to regulate voter registration.


Kevin Lamarque/Reuters

Arizona's determined campaign to establish its own independent immigration policy received yet another setback Monday at the unlikely hands of Justice Antonin Scalia, who as recently as last June was the state's most ferocious judicial ally.

In the process, a six-justice majority gave a strong affirmation to Congress's power to regulate state voter-registration processes and placed a roadblock in front of one potential means of voter suppression.

Scalia's majority opinion held that Arizona officials must register potential voters who complete the mail-in registration form prescribed by the federal Election Assistance Commission (EAC). The National Voter Registration Act (NVRA) requires that states "accept and use" this federal form. But the state had routinely rejected those forms from applicants who did not furnish state-mandated proof of citizenship, even though they were completely filled out.

Scalia's opinion demonstrated a virtue that his admirers often cite and his critics sometimes question -- consistency of method, even when the result might be uncongenial to him. Just last week, in his dissent in Maryland v. King, he sarcastically (and correctly) excoriated his conservative colleagues for stretching the word "identification" to mean "use for the detection of uncharged crimes." Monday, in Arizona v. Inter Tribal Council of Arizona, he spanked Arizona for arguing that "accept and use" can be stretched to mean "reject and return." (Chief Justice John G. Roberts, also passionate about word meanings, joined Scalia and the four moderate liberals to give the opinion six votes, with Anthony Kennedy concurring on narrower grounds.)

Unlike recent voter-ID cases, Inter Tribal Council doesn't concern what ID must be shown to vote; instead, it concerns what a potential voter must provide the first time he or she registers to vote, which usually happens by mail. The federal form was designed to balance a national interest in convenient voter registration with a competing interest in preventing fraudulent and non-citizen voting. It requires applicants to sign a sworn statement that they are citizens, but requires no additional documentation. States that receive such forms may check their own records to see whether the registrant is a citizen.

Under the NVRA, states may also request that the form's state-by-state instructions tell registrants what additional information their state requires. If the instructions are changed, states can reject forms that do not comply. Arizona's new documentation requirement was passed by the voters in 2004. The state then asked the EAC to amend the form. However, the confirmed members of EAC split 2-2 on Arizona's request. The state could have challenged this inaction in court, but instead it simply put the new requirement into effect.

Because the new requirement wasn't listed on the form, there was no way for Arizona applicants to know that the state needed more than the form asked for. As a result, court documents show, some 20,000 eligible voters -- most native-born and only about one-fifth of them Latino -- were unable to cast ballots.

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Garrett Epps is a contributing writer for The Atlantic. He teaches constitutional law and creative writing for law students at the University of Baltimore. His latest book is American Justice 2014: Nine Clashing Visions on the Supreme Court.

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