First, the good news, which is being widely hailed by voting rights groups: today the Supreme Court invalidated Arizona’s rule requiring documentary proof of citizenship in order to register to vote. The Court held that the National Voter Registration Act (NVRA), which requires only a statement made under penalty of perjury that the registrant is a citizen, preempts Arizona’s law that purported to require additional proof of citizenship. The decision was 7-2, with Justice Scalia writing for the majority; Justices Thomas and Alito dissented. As an example of how voting rights groups are reacting, here’s the statement from the Brennan Center:
Voters scored a huge victory today. We applaud the Supreme Court for confirming Congress’s power to protect the right to vote in federal elections. Congress recognized that voter registration must be made more accessible when it passed the National Voter Registration Act, and the Court also affirmed that today.
All true, and all well and good. Similarly, Ari Berman at The Nation wrote that “[t]he ruling is a major victory for voting rights and an affirmation of the NVRA, which has helped 141 million Americans register to vote and turned twenty last month.” And over at Slate, Emily Bazelon smugly declares that “[a]t his next Federalist Society event, Scalia will have some explaining to do.”
Or not. Here’s what worries me: in addition to telling Arizona that it could not require proof of citizenship in the way it tried to do (and, indeed, the question whether Arizona’s law is preempted is very easy – of course it was), Scalia’s opinion also lays out a roadmap for an alternative way for Arizona – or any other state – to do exactly the same thing. Scalia explained that “Arizona is correct that the [Constitution’s] Elections Clause empowers Congress to regulate how federal elections are held, but not who may vote in them…. Prescribing voting qualifications, therefore, ‘forms no part of the power to be conferred upon the national government” by the Elections Clause, which is “expressly restricted to the regulation of the times, the places, and the manner of elections.’ The Federalist No. 60, at 371 (A. Hamilton).”
And here’s where it gets really interesting. Emphasis mine.
Since the power to establish voting requirements is of little value without the power to enforce those requirements, Arizona is correct that it would raise serious constitutional doubts if a federal statute precluded a State from obtaining the information necessary to enforce its voter qualifications…. Since … a State may request that the EAC [Election Assistance Commission, a federal agency] alter the Federal Form to include information the State deems necessary to determine eligibility, see §1973gg–7(a)(2); Tr. of Oral Arg. 55 (United States), and may challenge the EAC’s rejection of that request in a suit under the Administrative Procedure Act, see 5 U. S. C. §701–706, no constitutional doubt is raised by giving the “accept and use” provision of the NVRA its fairest reading. That alternative means of enforcing its constitutional power to determine voting qualifications remains open to Arizona here.
Having said that Arizona can ask the EAC to alter the form to require that registrants submit proof of citizenship and can sue the EAC if the agency refuses, Scalia noted that the EAC currently lacks a quorum (because Republicans have refused to approve any members, though Scalia didn’t mention that), and observed that it might be problematic to request agency action if the agency can’t legally act. He then suggested a possible solution to that problem:
Arizona might then be in a position to assert a constitutional right to demand concrete evidence of citizenship apart from the Federal Form.
In other words, Arizona simply chose the wrong method to accomplish its goal of requiring documentary proof of citizenship. And Scalia has helpfully pointed the way.
Also worrisome is footnote 8 in Scalia’s opinion. This is real Supreme Court law geek stuff, but basically, Scalia attempts to deprive a 1970 case, Oregon v. Mitchell, which held that Congress could require states to allow 18-year-olds to vote in federal elections (previously most states limited the franchise to people over 21), of any precedential value. He does this by going through some elaborate vote-counting analysis. I won’t bore you with the details, but for those who are interested, give footnote 8 a read and see what you think.
So, yes, a short-term victory for voting rights. But IMHO it does not augur especially well for future cases. There is more along this general line of thought from Rick Hasen here, and from Marty Lederman here.
For all our talk about the right to vote, technically no such right exists. The Constitution leaves voting qualifications to the states, without any exceptions in the original and then with narrowly tailored exceptions by amendment. Qualified voters for the US House are to be the same as for the most numerous branch of the state legislature. Presidential Electors to this day are nowhere constitutionally required to be selected by popular vote at all. Amendments give ad hoc prohibitions on voting restrictions, but that’s it. Here is the rundown:
Amendment XIV – penalizes states restricting voting among men over 21 years.
Amendment XV – specifies that race, color, or previous servitude cannot be a barrier to voting.
Amendment XVII – applies the “most numerous branch” standard to popular election of the US Senate.
Amendment XIX – gender cannot be a barrier to voting.
Amendment XXIII – gives DC presidential electors.
Amendment XXIV – prohibits poll taxes.
Amendment XXVI – extends franchise to 18-year-olds.
As a loose constructionist I do think Congress is within its rights to legislate in ways to make voting easier, BUT constitutionally it has just as much right to go the opposite direction. The aforementioned clause of amendment 14 is qualified to those being citizens of the United States so presumably it is reasonable to check on that. The only way I can see this constitutionally challengeable is if any evidence must be paid for and thus construed as a poll tax.
of the “there is no right to vote in the Constitution” argument. It simply isn’t true that “technically no such right exists.” While the original Constitution contained no right to vote, subsequent amendments have made this right clear. For example:
Fifteenth Amendment: The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.
Nineteenth Amendment: The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of sex.
Twenty-Sixth Amendment: The right of citizens of the United States, who are eighteen years of age or older, to vote shall not be denied or abridged by the United States or by any State on account of age.
If there is no “right to vote,” then why would these amendments specifically speak of “the right of citizens of the United States to vote”? There is no need to be a “loose constructionist” to think that Congress can legislate to make voting easier (not to mention that each of these amendments specifically delegate to Congress the power to “enforce this article by appropriate legislation.”) It says so right in the text.
especially where, as you point out, the the “right of citizens of the United States to vote” is specifically referred to in three amendments. But I guess I also agree with the reality of the maxim “the Constitution is what judges say (or at least what the Supreme Court says) it is” to the extent that I’m not sure how much the fact this is the pretty obvious reading of the Constitution matters. Another coalition on the Court could over-rely (IMO) on the fact that, prior to the Fifteenth Amendment, the Constitution was utterly silent on the “right” to vote and construe the later amendments as narrowly tailored exceptions to the states’ “sovereign” power to regulate the franchise.
While David’s argument presents an interesting hypothetical, as does Christopher’s on different grounds, in practice this is a blow to the Republican strategy of preserving their increasingly tenuous grip on power by restricting the franchise.
Woe to the Arizona Republicans who seek office years from now when their state is majority Latino.
If the Democrats only had the gumption to demolish the absurd filibuster rules in the Senate they would make imposition of anti-democratic measures like those outlined by Scalia even more hypothetical and less likely to be implemented.
Though it does strike me a bit as assuming facts not in evidence on the part of the drafters of those amendments. If I wanted to play lawyer, I could ask of each of those amendments, “What right to vote? I don’t see that anywhere granted or protected.”