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 CASE IS SOLELY APPLICABLE TO VOTING REGISTRATION AND
THEN ONLY IN CERTAIN CIRCUMSTANCES.
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 SCOTUSblog.com:
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 SCOTUSblog.com:
The Court, by a seven-to-two vote,
today held that federal law preempts — that is to say, renders invalid — an
Arizona law REQUIRING VOTER REGISTRATIONTION
OFFICIALS TO REJECT A VOTER’S APPLICATION FOR REGISTRATION IF IT IS NOT
ACCOMPANIED BY EVIDENCE OF U.S. CITIZENSHIP ABOVE AND BEYOND THE ATTESTATION OF
CITIZENSHIP THE APPLICANT HAS MADE ON THE FEDERAL “MOTOR VOTER” FORM.
…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.
http://tinyurl.com/kh88tqk
1 comment:
Correct http://tinyurl.com/l6z64av
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