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Monday, February 18, 2013

The Important Voting Rights Case this Supreme Court Term

No, I'm not talking about that one.  I'm referring to Arizona v. Inter Tribal Council of Arizona, for which the Court hears oral argument on March 18.   

This case has everything to make an election law/federal courts junkie salivate:  a clash between the federal government and a state on who has proper authority over election regulation.  It is the tale of a law that rhymes (Motor-Voter), a fractured 9th Circuit en banc decision, and a novel question of preemption, all neatly wrapped in a question of how far a state may go to prove a voter's eligibility.  It also may have widespread implications on the interaction between the federal government and states in administering elections.

In 1993, Congress passed the National Voter Registration Act, often referred to as the Motor-Voter law.  Most people know that this law is why, whenever you obtain your drivers' license, the state official also asks whether you would like to register to vote for both federal and state elections.  That part of the law is not at issue here.  Another part of the law creates a national registration form for states to use to register voters.  The form includes a spot for the state to ask for basic registration-related information.  In addition, states may add state-specific voter requirements, such as asking the voter for his or her social security number or drivers' license number.  Virtually every state has included state-specific instructions.  In fact 17 of the form's 25 pages entail a list of state-specific requirements.

Arizona, no stranger to non-citizens within its borders, asked to include a requirement that a new registrant prove his or her U.S. citizenship by providing documentation.  This contrasts with the federal form, which simply asks a voter to attest, under penalty of perjury, that he or she is a U.S. citizen.  Simply checking the box is not good enough for Arizona, so it wants to require its registrants to do more.  It also said it will refuse new voter registration forms that do not have accompanying documentation regarding U.S. citizenship.  The U.S. Election Assistance Commission (EAC), which is the federal agency that administers the form, refused to allow Arizona to add a requirement of proving U.S. citizenship as part of the state-specific instructions.

Here the concept of conflict preemption rears its head:  does Arizona's refusal to accept the federal registration form if the voter has not provided proof of U.S. citizenship conflict with the National Voter Registration Act's mandate that states "accept and use" these forms?

The Ninth Circuit, sitting en banc, determined that the test for conflict preemption under the Elections Clause, which allows a state to regulate the "Times, Places, and Manner" of holding Congressional elections which is then subject to Congress's decision to "make or alter" such regulations (Art. I, Section 4), is different from conflict preemption principles under the Supremacy Clause.  In essence, the court ruled that "courts deciding issues raised under the Elections Clause need not be concerned with preserving a 'delicate balance' between competing sovereigns" like in the Supremacy Clause context, because the Elections Clause specifically grants Congress the authority to "make or alter" election regulations.

This one is tricky.  On the one hand, Arizona is blatently refusing to accept the federal form without the voter providing additional proof of U.S. citizenship, which would seem to go against the federal law's mandate that a state "accept and use" the form.  Moreover, the form already asks a registrant to attest to the voter's U.S. citizenship.  On the other hand, the federal government was probably incorrect in refusing to allow Arizona to add the requirement of proving citizenship in the state specific instructions.  It is not clear why asking for proof of U.S. citizenship would not enable the state official to verify a voter's elibility.  But, of course, the practical reality of the law is that many genuine citizens who have not or cannot gather the proper documentation will be denied their right to vote.  The Bush DOJ precleared the Arizona law under Section 5 of the Voting Rights Act, but common sense suggests that this law has a disparate impact on certain groups of voters.  

I think this case comes down to whether the federal form is considered a "floor" or a "ceiling" to state registration rules.  If it is a ceiling, then Arizona cannot ask for additional proof of citizenship.  If it is a floor, however, then Arizona can add to what the federal form requires.

Although I think the Arizona law is patently stupid (a technical term) and potentially harmful on voters' rights, it pains me to say that the state seems to have the better of the legal argument.  What is most persuasive here, to me, is that the federal form specifically contemplates state-specific instructions, and the Arizona request to ask for proof of U.S. citizenship would be a state-specific instruction that goes to a voter's eligibility.  The EAC was therefore likely unjustified in refusing Arizona's request to add this requirement.  Moreover, the federal statute explicitly allows a state to ask a registrant for information to demonstrate the registrant's eligibility:  A state "may require only such identifying information (including the signature of the applicant) and other information (including data relating to previous registration by the applicant) as is necessary to enable the appropriate State election official to assess the eligibility of the applicant."  This suggests that the federal form is a floor, not a ceiling, as the state can ask for additional information about the voter's elibility.  And information about a registrant's citizenship is "other information . . . as is necessary to enable the appropriate State election official to assess the elibigity of the applicant."  But it's a close case, because the Elections Clause contemplates a specific role for Congress, and Congress acted in promulgating a federal form that already asks about U.S. citizenship, albeit in a less stringent manner than Arizona would like.

What makes this case significant is the implication the Court's analysis could have on all sorts of election regulation.  If Arizona wins, then Congress must be much more explicit in any election law it passes.  The power of regulating elections would shift even further to the state.  If Arizona loses, however, then the Court will be signaling that Congress's role over election administration remains broad, allowing it to dictate how states must run its elections without exceedingly specific language on each aspect of the voting process.  We therefore have a clash not only over federalism issues but more broadly over who has the proper authority to regulate our election system.  Without being overdramatic, the fate of Congress's practical ability to "make or alter" election regulations depends on how far the Court is willing to see conflict preemption in this setting.  If Congress must be extremely detailed and specific in every election law, then states will almost always be able to find a workaround, shifting the balance of power to run elections squarely to the states.

These days it is virtually impossible for Congress to accomplish anything.  This is probably even more true in the election setting, when the partisan stakes are so high.  A win for Arizona could mean that states will have the authority to impose more and more restrictive voting regulations on its citizens, and Congress is likely unable and unwilling to do anything to stop it in the near future.  So although as a doctrinal matter Arizona might have the better argument, I hope my legal analysis is wrong.  Otherwise, states will have too much power to override Congressional statutes meant to make voting easier and simpler for all voters.

Posted by Josh Douglas on February 18, 2013 at 11:51 AM | Permalink


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