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.
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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.

Scalia applied straightforward statute-reading to conclude 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." Importantly, his opinion then refused to narrow the scope of Congress's power to supervise federal election procedures in the states.

Scalia noted that Arizona could again petition the EAC to list its new document requirements on the form. Because there are currently no members of the Commission, the request is (shall we say) unlikely to be granted. Arizona, Scalia pointed out, could then request a federal court to order the agency to comply. If that didn't work, it could make a new constitutional challenge to NVRA.

In practical terms, however, Arizona lost big Monday. At oral argument, the Justices had seemed skeptical of the federal form. Scalia himself ridiculed the sworn-statement requirement: "Big deal," he said. "If ... you're willing to violate the voting laws, I suppose you're willing to violate the perjury laws." But Monday the sarcasm was gone; the opinion explicitly deferred to Congress and the Commission.

To salvage its law, Arizona must now insert itself into a multi-year federal Möbius strip of litigation. Even if it wins, the federal form will be amended to explain to potential voters what documentation they must submit, eliminating the trap for the unwary.

Justice Anthony Kennedy concurred in the judgment, but protested at the majority's plenary endorsement of Congress's power over voter registration requirements. Justice Clarence Thomas dissented, drawing on history to argue that "Congress has no role in setting voter qualifications, or determining whether they are satisfied," except to prevent discrimination on the basis of race, sex, failure to pay a poll tax, and age. "Arizona has the independent constitutional authority to verify citizenship in the way it deems necessary." Justice Samuel A. Alito dissented as well, arguing that the NVRA should be read as permitting states to treat the federal form in precisely the same way it treats its own forms.

But even treating Kennedy as almost a "no," that lineup includes only three potential votes for future challenges (four are required to grant certiorari). The decision Monday is thus quite important.

No one who was present in Court last spring will forget Justice Scalia's outburst from the bench when the Court invalidated an Arizona law requiring state law enforcement agents to investigate and detain anyone they suspected of being illegally present in the U.S. "Are the sovereign States at the mercy of the federal Executive's refusal to enforce the Nation's immigration laws?" he asked.

In tone and demeanor, Monday's opinion session could not have been more different. The genial atmosphere, and the scrambled lineup of Justices in this and the other cases announced, suggested that the Court, after the bloodbath of last term, actually is in an era of good feeling.

But then again, the most divisive cases are yet to come. Good feeling may not survive past Thursday.

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Garrett Epps, a former reporter for The Washington Post, is a novelist and legal scholar. He teaches courses in constitutional law and creative writing for law students at the University of Baltimore and lives in Washington, D.C. His new book is American Epic: Reading the U.S. Constitution.

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