SCOTUS On AZ Voting Law: Not The Victory You Were Looking For
On Monday, the Supreme Court announced its decision in Arizona v. Inter Tribal Council of Arizona, Inc., No. 12-17 (.pdf file), to applause on the left. The Court’s decision, penned by Justice Scalia, struck down a provision of Arizona law requiring individuals registering to vote in federal elections to provide proof of U.S. citizenship in certain cases. But, alas, it’s not quite what it seems.
The case stems from Arizona’s Proposition 200, adopted in 2004, which “amended the State’s election code to require county recorders to ‘reject any application for registration that is not accompanied by satisfactory evidence of United States citizenship.’ Ariz. Rev. Stat. Ann. §16–166(F) (West Supp. 2012).” Inter Tribal Council, slip op. at 2-3. Thereafter, individuals registering to vote were required to submit documentation such as birth certificates, driver’s licenses (if the issuing state required proof of citizenship), naturalization papers, and so forth. The issue in the Inter Tribal Council case, however, was a narrow one: not whether Arizona’s proof-of-citizenship requirement was invalid or unconstitutional in and of itself, but whether it conflicted with federal law with regard to mail-in registrations for federal elections.
As the Court explained, under the National Voter Registration Act of 1993 (“NVRA”), 42 U.S.C. §§ 1973gg et seq., states must allow individuals to register to vote in federal elections at the time they obtain driver’s licenses, in person, or through the mail. With regard to registrations by mail, NVRA Section 1973gg-4 “requires States to ‘accept and use’ a standard federal registration form,” slip op. at 2, which is prepared by the Election Assistance Commission (“EAC”). So, the EAC prepared a form that requires registrants swear, under oath, that they are U.S. citizens, but does not require further proof of citizenship. After Proposition 200, however, Arizona directed its election officials to reject any federal form submitted by a mail-in registrant unless it was accompanied by the citizenship documents required by Arizona law.
So, the question in the Inter Tribal Council case was whether NVRA Section 1973gg-4, which directs states to “accept and use” the federal form, prohibited Arizona from requiring additional documentation with regard to citizenship. The starting point for the Court’s analysis was the Elections Clause of the federal Constitution, which provides, in relevant part, “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations.” U.S. Const., Art. I, § 4. So, in essence, the states are required to set up procedures for holding federal elections, but, if they fail to do so, or if Congress otherwise chooses, Congress can enact its own laws modifying or supplanting state procedures.
Here, both Arizona and Congress weighed in on the requirements for registering to vote in federal regulations by mail, Arizona by requiring mail-in registrants to supply citizenship documents not required by the NVRA. In Court, Arizona argued that it wasn’t violating the NVRA’s mandate to “accept and use” the federal registration form, because the State was accepting and using it, but was merely requiring additional documentary proof of citizenship.
Not so, said the Supreme Court, citing a number of other federal statutes using similar “accept and use” language, all of which have been held to be mandatory – that is, the requirement to accept and use meant not just “willing receipt” of whatever the statute commands, but that “its object is to be accepted as sufficient for the requirement it is meant to satisfy.” Inter Tribal Council, slip op. at 7-8 (emphasis in original). The Court further stated that Arizona’s position was inconsistent with NVRA Section 1973gg–6(a)(1)(B), which “provides that a State shall ‘ensure that any eligible applicant is registered to vote in an election . . . if the valid voter registration form of the applicant is postmarked’ not later than a specified number of days before the election. (Emphasis added.).” Id. at 8-9. Obviously, the federal form prepared by the EAC is a “valid voter registration form” within the meaning of this section.
So, the Court ruled that NVRA Section 1973gg-4 did not permit Arizona to reject duly submitted federal registration forms simply because the registrants failed to include additional citizenship documents required by state law. The Court then quickly dispatched Arizona’s additional argument that NVRA Section 1973gg-4 was not meant to preempt Arizona law, stating that federal legislation passed under the Constitution’s Election Clause, “‘so far as it extends and conflicts with the regulations of the State, necessarily supersedes them’,” quoting Ex parte Siebold, 100 U. S. 371, 384 (1880). Inter Tribal Council, slip op. at 10-11.
But, hold on. That’s not the end of the matter. Noting that the Elections Clause only gives Congress the power to override state law with respect to “[t]he Times, Places and Manner of holding Elections,” the Court pointed out that it’s the states that get to determine who gets to vote (subject, of course, to the Fifteenth, Nineteenth and Twenty-Sixth Amendments). Specifically, Article I, Section 2 of the Constitution states that, with respect to the House of Representatives, “the Electors in each State shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature”; and the Seventeenth Amendment tracks that language with respect to direct elections of Senators. Inter Tribal Council, slip op. at 13.
Furthermore, NVRA Section 1973gg–7(b)(1) says that the EAC’s federal registration form must require “such identifying information … and other information … as is necessary to enable the appropriate State election official to assess the eligibility of the applicant ….” Meaning that Arizona has the right to ask the EAC to alter its form to require Arizona’s mail-in registrants to submit additional proof of citizenship as required by state law. In fact, Arizona tried that back in 2005, but the EAC was evenly split on the issue (two to two), and so it could not honor the state’s request. And here’s the kicker. Said Justice Scalia:
[W]e are aware of nothing that prevents Arizona from renewing its request.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. See 5 U. S. C. §706(1).
Inter Tribal Council, slip op. at 17.
Well. That was helpful. For Arizona.
In any event, let’s recap. The Court’s ruling applies only to mail-in registrations for federal elections, not to all voter registrations. The Court did not find anything inherently wrong or unconstitutional with the state’s requiring additional proof of citizenship, only that it conflicted with federal law. And the Court provided Arizona a handy roadmap to challenge the EAC’s decision not to modify the federal mail-in form to require additional citizenship documents from Arizona registrants.
So, all in all, it’s not quite the victory for voting rights that many were hoping for.