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17 June 2013

Understanding Arizona v Inter-Tribal Council of Arizona

 Justice Scalia announces the opinion this morning (Art Line)


First things very FIRST, despite what the Left has said, this case has NOTHING whatsoever to do with Voter ID laws.  In fact, Arizona's Voter ID law is still in effect and the Supreme Court has previously upheld the constitutionality of Voter ID laws in Crawford v Marion County Election Board, 553 U.S. 181 (2008).


The issue in this case was whether the National Voter Registration Act of 1993 a/k/a The Motor Voter Act preempted Arizona's requirement of proof of citizenship before one may register to vote.  It does.  Under the Supremacy Clause of the Constitution, Federal law trumps state law.

BUT - and this is important:  As its name implies, the National Voter Registration Act of 1993 only regulates voter REGISTRATION... NOT VOTING.

There is NO Federal law that preempts voter ID laws; thus Federal law CANNOT preempt state laws requiring proper identification before individuals are permitted to vote.

The Court did NOT overrule Crawford...and, as Attorney General Eric Holder's recent white flag-waving after he lost his challenge to South Carolina's Voter ID law wherein he declined to file cert asking the Supreme Court to rule on its constitutionality, there is no likelihood of it being overturned any time soon.  Further, if Holder wasn't embarrassed enough in his challenge of the South Carolina law, a three-judge panel of the District of Columbia federal court declared that South Carolina was the 'prevailing party' under an applicable Federal statute that allows the state to obtain reimbursement for its litigation costs from not only the Justice Department, but the so-called civil rights organizations like the NAACP and the South Carolina Progressive Network that intervened in the lawsuit to stop the state’s voter ID statute.

As Justice John Paul Stevens, an uber Progressive, wrote for the 6-3 majority in Crawford:

‘The relevant burdens here are those imposed on eligible voters who lack photo identification cards that comply with SEA 483. Because Indiana’s cards are free, the inconvenience of going to the Bureau of Motor Vehicles, gathering required documents, and posing for a photograph does not qualify as a substantial burden on most voters’ right to vote, or represent a significant increase over the usual burdens of voting. The severity of the somewhat heavier burden that may be placed on a limited number of persons—e.g., elderly persons born out-of-state, who may have difficulty obtaining a birth certificate—is mitigated by the fact that eligible voters without photo identification may cast provisional ballots that will be counted if they execute the required affidavit at the circuit court clerk’s office. Even assuming that the burden may not be justified as to a few voters, that conclusion is by no means sufficient to establish petitioners’ right to the relief they seek.’

As I have said on previous occasions, good luck getting the United States Supreme Court to overturn Crawford v Marion County Election Board.

For the record, Arizona's Voter ID law is still in effect.

For those that won't take my word for it, let's look at what others have written, shall we?

As Lyle Dennison, who has been covering the Supreme Court for fifty-five years and a journalist of the law for 65 years, wrote in his Opinion Recap: One Hand Giveth...  at

In a ruling that might easily be misunderstood if not read very closely, the Supreme Court on Monday simultaneously strengthened Congress’s hand in expanding the ranks of eligible voters, and yet 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.

The decision in the case of Arizona v. Inter Tribal Council of Arizona (docket 12-71) had major potential for sorting out the dual roles of Congress and the states in deciding eligibility to vote, and that was even more vital in the midst of a new national controversy over efforts among some states to narrow eligibility.  The end result will give both sides in that controversy encouragement, but perhaps rather confusing legal guidance.

For those who would look to Congress to keep open, and expand, the right to vote for the presidency and for members of Congress, Justice Antonin Scalia’s opinion for a majority (seven to two on several points, six to three on one other very key point) promised that Congress could pass its own laws on the voter registration process, and states would have to yield to those.   In this case, a federal voter registration form only requires would-be voters to declare that they are citizens, but Arizona would also require them to show hard proof that they are.   On that point, apparently, Arizona must yield to the federal form, and sign up those who present it.

The part of the Scalia opinion that went the furthest in Congress’s favor — and on which the majority was only six to three, because Justice Anthony M. Kennedy would not join on this point — laid down a seemingly very broad rule on when state election law requirements must yield to those enacted by Congress.

There is a customary rule that courts are to operate on the basic premise that, when Congress and the states act in the same field, state laws won’t be displaced unless Congress explicitly says they must yield.  That “presumption against preemption,” in technical terms, does not even apply to the joint enterprise of Congress and the states in regulating elections, according to the new decision.   Thus, in this one field, states do not get the benefit of the doubt when they pass election laws that appear to be, or are, different from what Congress has mandated.

If a reader of the Scalia opinion stopped at the top of page 13, the impression would be very clear that Congress had won hands down in the field of regulating federal elections.   But from that point on, there is abundant encouragement for what is essentially a states’ rights argument: that is, that the states have very wide authority to define who gets to vote, in both state and federal elections.

On the particular point at issue in this case — Arizona’s requirement of proof of citizenship before one may register to vote or actually vote — the Scalia opinion said that a state was free to ask the federal government for permission to add that requirement.   And, Scalia said, if that doesn’t work — either because the federal agency that would deal with such a request is either not functioning or says no — then a state would be free to go to court and make an argument that it has a constitutional right to insist on proof of citizenship as an absolute qualification for voting, in all elections.

The opinion seemed to leave little doubt that, if Arizona or another state went to court to try to establish such a constitutional power, it might well get a very sympathetic hearing, because that part of the Scalia opinion laid a very heavy stress on the power of states under the Constitution to decide who gets to vote.   Indeed, that part of the opinion said that the Constitution simply does not give Congress the power to decide who can qualify, but only how federal elections are run procedurally.

It will be up to lower courts — and election-law specialists — to sort out just how to reconcile the two parts of the Court’s majority opinion.   And it appears there may well be quite a few opportunities to do so, because of the rising number of efforts — particularly in states in which Republicans have control of state governments — to impose new voter ID and other restrictions on the right to vote.

If the Arizona ruling turns out, in the future, to widen the power of states to limit the right to vote, the decision might turn out to have been far more decisive than its internal contradictions suggested on first reading on Monday.

Justice Scalia’s opinion had the full support of Chief Justice John G. Roberts, Jr., and Justices Stephen G. Breyer, Elena Kagan, Ruth Bader Ginsburg, and Sonia Sotomayor.   Justice Kennedy joined all parts of the opinion except the refusal to apply the “presumption against preemption” to state election laws.

Justices Samuel A. Alito, Jr., and Clarence Thomas each filed a dissenting opinion, speaking only for themselves individually.   Justice Alito put most of his emphasis on a different way to read the federal voter registration law at issue, but spent considerable effort arguing that the road map the majority had laid out for states that want to impose a proof-of-citizenship requirement would not work in practice.

Justice Thomas’s dissent was mainly devoted to arguing that the Constitution gives Congress no role in judging who may register to vote, and that this is a power given exclusively to the states.

This decision, in plain English:

The Constitution divides up the power to determine who will be allowed to vote between state governments and Congress.  The states have the basic power to decide who is eligible to vote but, so far as state laws are aimed at who gets to vote for President or Congress, the Constitution gives Congress a back-up power to change or even to override those state laws.

The Supreme Court on Monday made a significant effort to try to sort out how to divide up this power, in the context of deciding whether a state may require would-be voters to show proof that they are U.S. citizens — both to register and to actually vote.  That proof requirement was challenged by various advocacy groups, because Congress in 1993 had passed a law designed to expand the ranks of voters, and a federal agency acting under that law has specified a form that voters may use to register.

The argument before the Court was that the federal law must control, because Congress had specified that, in filling out a federal form, all would-be voters had to do was to swear they are U.S. citizens, while Arizona went further and required an actual piece of official paper to prove citizenship.   The challengers argued that the two approaches cannot co-exist, so the state proof requirement had to yield.

On the one hand, the Supreme Court agreed that, for now, Arizona’s proof requirement must yield to the federal form’s approach — that is, it is enough to register, using that form, if the would-be voter swears that he satisfies the citizenship requirement.

On the other hand, however, the Court also ruled that Arizona can seek permission from federal officials to impose its proof-of-citizenship requirement.  If it fails with that request, it can go to court and argue that it has a constitutional right to make proof of citizenship a binding requirement for all voters.

 It was the kind of mixed decision that can sometimes baffle lay readers and, in this instance, maybe even lawyers and judges, too, because the two parts of the ruling did not seem to be reconciled easily.

Hans A von Spakovsky weighs in:

The U.S. Supreme Court today struck down part of an Arizona state law intended to keep noncitizens from voting and thereby disenfranchising legitimate voters. Within moments of the decision, the Lawyers’ Committee on Civil Rights, the ACLU, the League of Women Voters, and MALDEF held a press call to crow about their victory in Arizona v. Intertribal Council of Arizona.

Their victory dance may be short-lived, however. The ruling was very narrowly drawn, and the Court laid out a roadmap by which Arizona can protect the integrity of its elections after all.

The first thing to keep in mind is that this was not a decision about voter ID — despite what initial reports implied.  Arizona’s voter-ID law remains in place. In fact, it wasn’t being contested before the Supreme Court. The plaintiffs lost their claim against the voter-ID law in the lower courts and didn’t bother to include that claim in their appeal.

At issue in Intertribal Council was another provision of Arizona’s voter-approved 2004 referendum that requires anyone registering to vote to provide proof of citizenship. That proof might be a passport, birth certificate, naturalization papers, tribal ID, or other documents accepted by the federal government under immigration laws.

Today’s majority (7–2) opinion, written by Justice Antonin Scalia, held that the federal National Voter Registration Act of 1993 preempts Arizona’s requirement that applicants submit proof of citizenship when registering. The NVRA specifies that states must “accept and use” the federal mail-in voter registration form. The majority ruled that Arizona’s proof-of-citizenship requirement conflicts with that provision because the “Federal Form guarantees that a simple means of registering to vote in federal elections will be available.” Arizona, the majority held, cannot require information beyond that “required by the form itself.”

However, Scalia’s opinion had some important caveats. He made it clear that the NVRA preemption applies only to the federal voter-registration form, not Arizona’s state-registration form. According to the majority, “state-developed forms may require information the Federal Form does not.” So anyone registering to vote in Arizona using the state’s voter-registration form is still going to have to provide proof of citizenship. The Court also carefully noted that the NVRA does not “preclude States from ‘deny[ing] registration based on information in their possession establishing the applicant’s ineligibility.’” 

The final three pages of Scalia’s opinion lay out a roadmap whereby Arizona can get around this ruling. In 2005, Arizona asked the U.S. Election Assistance Commission, the federal agency responsible for the federal voter-registration form, to “include the evidence-of-citizenship requirement among the state-specific instructions on the Federal Form” for any residents of Arizona. The EAC’s four commissioners split 2 to 2, so the agency took no action. “We are aware of nothing that prevents Arizona from renewing its request,” Scalia suggests.

If the EAC refuses the request or “its inaction persists,” Scalia writes, then Arizona can sue the EAC and establish in court that “a mere oath will not suffice to effectuate its citizenship requirement and that the EAC is therefor under a nondiscretionary duty to include Arizona’s concrete evidence requirement on the Federal Form.”

The Justice went so far as to say that Arizona could claim the EAC’s refusal is “arbitrary” since the agency “has accepted a similar instruction requested by Louisiana.” In fact, footnote 11 helpfully instructs that the “EAC recently approved a state-specific instruction for Louisiana requiring applicants who lack a Louisiana driver’s license, ID card, or Social Security number to attach additional documentation” to the federal voter-registration form.

Finally, notice what is missing in this opinion: any talk of the proof requirement’s being “discriminatory.” This was a claim about NVRA preemption — period! There was no claim that the requirement was racially or ethnically discriminatory because (1) that claim got thrown out in the lower court and (2) the elections held while the requirement was in place showed it had no discriminatory effect.

Voting by noncitizens is a real problem, as John Fund and I explained in Who’s Counting? How Fraudsters and Bureaucrats Put Your Vote at Risk.” Indeed, in the lower-court hearing, Arizona had no difficulty producing evidence of illegal voting by noncitizens. It’s  a problem that cannot be solved by a mere honor system that relies on voter-registration applicants to honestly answer whether they are citizens or not — there is too much evidence that this does not deter noncitizens from registering and voting. 

From Marty Lederman at


…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.

One other potentially important thing: Footnote 9 of the Court’s opinion leaves open the question of whether Arizona could circumvent the Court’s ruling by re-characterizing its law in the following way: (i) to require proof of citizenship beyond the Federal Form attestation in order to register to vote; and then (ii) providing that such “registration” is a qualification for voting in federal elections in Arizona.

More significantly, the Court suggests that if federal law (the Motor Voter law or a subsequent, clarifying statute enacted by Congress) did prevent Arizona from obtaining the “necessary” information about citizenship as a condition of voter qualification, it would raise a serious constitutional question concerning whether Congress can impose such limits, even though the qualification in question is for voting in federal, not state, elections.

Therefore, the Court explains, if the EAC is precluded from acting on Arizona’s submission by virtue of its current lack of a quorum (there are no commissioners currently in office), then Arizona could seek a writ of mandamus from a federal court to compel the EAC to act; and even if the federal court lacks power to require an agency without a quorum to take such action, “Arizona might then be in a position to assert a constitutional right to demand concrete evidence of citizenship apart from the Federal Form.”

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).

From Charles C. W. Cooke at National Review:

Those who await such things with bated breath will have noticed that the Supreme Court did not rule this morning on the inflammatory questions of gay marriage, affirmative action, or the Voting Rights Act. Nonetheless, it did issue a 7-2 verdict in Arizona v Inter Tribal Council of Arizona a ruling that, SCOTUSBlog’s Lyle Denniston suggested, “might easily be misunderstood if not read very closely.” Predictably, this is exactly what happened: The professional Left — MSNBC, Ezra Klein et al. – was quick to pick this up and imply that the court had found voter identification laws unconstitutional; meanwhile, many on the Right complained that the court had blocked attempts to ensure that the vote remains true. “ACORN’s revenge,” Michelle Malkin termed it.

Neither party is correct, and both sides would benefit from looking at the case rather than the headlines. First, this case was about voter registration and not voting itself. Second, and more important, the key issue at hand here was federalism. Primarily, SCOTUS was attempting to define what is the responsibility of the federal government, what is left to the states, and what happens when they clash.

Again: The case had very little to do with voter identification, which, this being a statutory rather than constitutional issue, was found neither constitutional nor unconstitutional. Certainly one might agree with Justice Thomas, who argued in his dissent that the federal government has no constitutional authority over the voters rolls. But that should prompt neither crowing about the defeat of fictional GOP “disenfranchisement” plans, nor hysterical predictions that the ineligible will now steal the 2016 election for the Democrats with judicial approval. Rather than running around pretending that the sky has fallen, conservatives who are vexed by the court’s deciding that, in this case, federal law preempts state law would do well to focus their efforts on changing that federal law.

From J Christian Adams, who long-served in the Department of Justice:

Something perverse happened after the Supreme Court’s decision today invalidating citizenship-verification requirements in Arizona for registrants who use the federal voter registration form. The Left knows they lost most of the battle, but are still claiming victory. That’s what they do. Election-integrity proponents and the states are saying they lost, but don’t realize they really won.

The Left wins even when they lose, and conservatives are often bewildered and outfoxed in the election-process game.

Earlier today, I called the decision a nothingburger. After re-reading the case and reflecting a bit more, it’s clear that the decision was a disaster for the Left and their victory cackles are hollow — and they know it.

Worse, conservatives dooms-dayers, who have never litigated a single National Voter Registration Act case, have taken to the airwaves, describing the case as a disaster which invites illegal-alien voting.

In the last year, I’ve litigated five NVRA cases and worked on the preemption issues for years, and there is more to cheer in today’s opinion than there is to bemoan. Those complaining about the opinion don’t understand what the Left’s goal was in this case: total federal preemption. On that score, Justice Scalia foiled them; indeed, the decision today was a huge war won, even if the small Arizona battle was lost.

From my time in the Justice Department Voting Section, I can remember intimately the wars over some of the preemption issues decided today.

The Left essentially believes that anyone who fills out a federal Election Assistance Commission registration form should be allowed on the rolls, no questions asked. There were complex fights over the “citizen check-off box” issues, with the Left wanting the box rendered meaningless, and conservatives and election-integrity proponents believing a registration cannot be processed until a registrant affirms on the box that he or she is a citizen.

Before the decision today, here is what the Left wanted:

Invalidation of Arizona’s requirement that those submitting a federal form provide proof of citizenship with their federal form. Mind you, the citizenship-proof requirement is NOT part of federal law and the Election Assistance Commission does NOT require it in the form they drafted.

Invalidation of state citizenship-verification requirements when a state voter registration form is used (yes, such forms exist separate from the federal requirement) on the basis of federal preemption. They wanted the Arizona case to invalidate all state citizenship-verification requirements.

Automatic registration if a registrant submits a completed federal EAC approved registration form, no questions asked.

Federal preemption on the ability for states to have customized federal EAC-approved forms that differed from the default EAC form.

Federal preemption over states, like Florida and Kansas, looking for independent information on citizenship to root out noncitizens from the voter rolls. Again, the Left wanted the federal EAC form to be the no-questions-asked ticket to the voter rolls.

So what is the score on these five goals after Justice Scalia’s opinion today?

Election-integrity advocates are batting .800; left wing groups, .200. And the most insignificant issue of the five is the one issue the Left won. Justice Scalia foiled 4 of 5 of their goals, and the 4 biggest ones.

How does it work? The decision today uncorks state power. The Left wanted state power stripped and they lost.

First, Arizona can simply push the state forms in all state offices and online, and keep those federal forms in the back room gathering dust. When you submit a state form, you have to prove citizenship. Thanks to Justice Scalia, that option is perfectly acceptable. Loss for the Left. Victory for election integrity.

You might say, “That’s a small victory.” Nonsense. This was the whole ballgame to the groups pushing the Arizona lawsuit. They lost, period.

Next, when voters use a state, as opposed to a federal, form, they can still be required to prove citizenship. The federal form is irrelevant in that circumstance.

After the decision today, states have a green light to do double- and triple-checking even if a registrant uses the federal form. The Left wanted the submission of a federal form to mean automatic no-questions-asked registration. This is a big loss for the Left because now states can put suspect forms in limbo while they run checks against non-citizen databases and jury-response forms. Another significant victory in today’s decision. The Left wanted to strip them of that double-checking power.

The decision today is a great example of how conservatives can be distracted by squirrels running past. It is understandable and forgivable because they aren’t daily immersed in the long-term election-process agenda of the left-wing groups. Nor do they daily involve themselves with the details of election process. But having been in the “preemption wars” for nearly a decade, I can assure you this case is a big win, even if it doesn’t appear so at first glance.

So, let us stop with the cries of joy on the one side and the screams of impending doom on the other.  Neither side is correct and both should try to actually read the decision - THE ENTIRE DECISION...THERE ARE 38 MORE PAGES OF THE DECISION AFTER THE POINT WHERE THE MEDIA APPARENTLY STOPPED READING - and understand what the Court ruled in Arizona v Inter-Tribal Council of Arizona.

UPDATE #1: I've read where some are arguing that citizenship is not required by the Constitution.   This is not exactly untrue.  Actually, there is some language that addresses voting and citizenship…

The Fourteenth Amendment, Section 2, says:

‘Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.’

The Fifteenth Amendment says:

‘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.’

The Nineteenth Amendment says:

‘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.’

The Twenty-Fourth Amendment says:

'The right of citizens of the United States to vote in any primary or other election for President or Vice President, for electors for President or Vice President, or for Senator or Representative in Congress, shall not be denied or abridged by the United States or any State by reason of failure to pay poll tax or other tax.’

The Twenty-Sixth Amendment says:

‘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.

One caveat: In Minor v Happersett, 88 U.S. 162 (1875), which was effectively overruled by the Nineteenth Amendment and Voting Rights Act, the Court noted that:

‘[C]itizenship has not in all cases been made a condition precedent to the enjoyment of the right of suffrage. Thus, in Missouri, persons of foreign birth, who have declared their intention to become citizens of the United States, may under certain circumstances vote.’

As I said, this case was effectively overturned by the Nineteenth Amendment and the Voting Rights Act. In his dissenting opinion in Reynolds v Sims, 377 U.S. 533 (1964), Justice Harlan listed a number of previous decisions concerning voting that are no longer considered good law and included Minor on it. Minor has been cited as a reason that localities and states may permit non-citizens to vote in local and state, but not federal, elections.

UPDATE #2:   For those that think this is a Jan Brewer law, think again. Proposition 200 passed in 2004…when Janet Napolitano, (D), was Governor of Arizona.

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