Could Supreme Court's Arizona Ruling Lead to Voting Messes Down the Road?

Some court-watchers say the opinion might strip Congress of the power to regulate the ballot -- but, for now, they can probably relax.

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On Monday, I wrote that the Court's 7-2 decision in Arizona v. Arizona Inter Tribal Council "gave a strong affirmation to Congress's power to regulate state voter-registration processes" and "refused to narrow the scope of Congress's power to supervise federal election procedures in the states." That remains the general view. (See coverage here, here, and here.)

Some commentators I respect find the decision more mixed as an affirmation of federal power over state voting procedures. At SCOTUSblog, Lyle Deniston concluded that the opinion "assured states that they retain the ultimate power to decide who gets to vote. The apparent bottom line: states cannot now require voters to show proof that they are U.S. citizens, but the Court has given them a plan that could gain them that power." Also in SCOTUSblog, Georgetown Law Professor Martin Lederman argues that "what appears at first to be a significant victory for the federal government might in fact be something much less than that -- indeed, might establish important restrictions on Congress's authority to determine eligibility for voting in federal elections, in a way that implicates current and potential future federal legislation." And at the Daily Beast, election-law guru Richard Hasen warns that the decision "may give states new powers to resist federal government control over elections."

It's hard to think of three smarter people. I continue to think that the decision is a big win for Congress's power. The storm clouds these commentators discern may be threatening, but also may pass over easily.

The two major worries concern (1) the opinion's suggested alternate route by which Arizona can seek approval of its citizenship-documentation requirements for voter registrants, and (2) a lengthy dictum in the six-justice majority opinion expressing a narrow view of an enigmatic earlier case, Oregon v. Mitchell. These portend future defeats, the commentators warn, either for the National Voter Registration Act itself or for a larger power of Congress to regulate state voter-eligibility and registration requirements.

The first worry comes from a section of the majority opinion noting that, under the act, states can request the Election Assistance Commission to put specific instructions on the federal mail-in registration form telling registrants of specific information their state requires. Arizona did that, but the Commission split 2-2 on whether that request complied with the act. The state had the option of challenging that denial in court, but instead it simply implemented its citizenship-documentation rule without permission.

"That alternative means of enforcing its constitutional power to determine voting qualifications remains open to Arizona here," Justice Scalia's majority opinion said. "Should the EAC's inaction persist, Arizona would have the opportunity to establish in a reviewing court that a mere oath will not suffice to effectuate its citizenship requirement and that the EAC is therefore under a nondiscretionary duty to include Arizona's concrete evidence requirement on the Federal Form."

In a footnote, the opinion adds that the EAC currently has no members. A federal court might conclude it could not order action by a basically non-existent federal agency; if that happens, "Arizona might then be in a position to assert a constitutional right" to implement its requirement.

Arizona announced Tuesday that it planned to renew its request to the EAC. The "non-discretionary duty" language can be read as a signal to a federal court that it must approve a request from Arizona to include the documentation requirements on the Federal Form. But it can also be read to suggest that Arizona has the chance to argue that its requirement is "necessary," and that a reviewing court could weigh the language of the statute against that claim. Like a character in a novel by Gogol, Arizona will have to apply to the nonexistent EAC, wait long enough to establish legally that the Commission has failed to act, then go to a lower federal court -- a process that could take years and, in my reading, could produce either result.

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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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