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.
The second, more powerful worry, comes from the footnoted language about a "constitutional right." Lederman asks:
Where does this possible "constitutional right" come from? The answer to that question is perhaps the most important development in the case, because it has implications that might go well beyond the citizenship ID issue immediately before the Court: The Court categorically holds -- without dissent -- that the Elections Clause of Article I of the Constitution (Art. I, § 4, cl. 1) "empowers Congress to regulate how federal elections are held, but not who may vote in them" (emphasis in original). This unanimous holding resolves a long-unresolved question about Congress's power to determine who may vote in federal elections, and would appear to implicitly overrule at least one of the Court's holdings in the landmark 1970 case of Oregon v. Mitchell.
If the opinion actually "holds" that, Lederman notes, it might call into question the validity of federal laws requiring states to register voters who have moved abroad or entered military service, as that would be considered regulating "who may vote" in their elections. A federal law requiring re-franchisement of felons, he adds, would also be off the table.
I have great respect for Lederman; in his time at the Office of Legal Counsel, he acquired the government lawyer's wary ability to see far down the road for potential potholes. Far be it from me to belittle his view of the dangers. My feeling is that the language he cites is actually not part of what lawyers call the "holding," since the case is decided only on the ground that the federal voter registration act preempts Arizona's language. The issue about "who" remains to be argued another day. There's a perfectly good argument that, when Congress requires states to register military personnel and overseas registrants, it is not limiting the state's power to decide "who" may vote -- that is, all citizens of the US and of that state who are over 18 and not disfranchised by law. It is simply using its "make or alter" power to specify how the states may verify who meets those requirements.
Lederman notes that, for advocates of congressional power, the real payoff of the opinion is in its very broad reading of that federal power to regulate election proceedings. Scalia writes that "[t]he Clause's substantive scope is broad. 'Times, Places, and Manner,' we have written, are 'comprehensive words,' which 'embrace authority to provide a complete code for congressional elections,' including, as relevant here and as petitioners do not contest, regulations relating to 'registration.'"
The opinion suggests that there's been some old-fashioned bargaining behind the scenes. If that's true, the liberals made a favorable deal. They got a win in the here and now, the conservatives got the prospect that Santa may bring a pony next Christmas.
But a prospect is a long way from a pony. For now, I think advocates of congressional power should take "yes" for an answer.
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