Defending the NVRA from the ever-present and persistent specter of state sovereignty

Listen to the excerpt above to hear the comments by Justice Scalia that Prof. Tolson refers to below.  You can hear more excerpts as part of our new AFJ Audio Analysis project.  It's on our website here.
 
By Franita Tolson, 

Betty T. Ferguson Professor of Voting Rights at

Florida State University College of Law

Arizona’s Proposition 200 requires prospective voters to show proof of U.S. citizenship in order to register to vote in federal elections.  This week, the Supreme Court heard arguments over whether this law interferes with the National Voter Registration Act (“NVRA”), which requires states to accept the federal form for voter registration in federal elections.  This form requires no additional proof of citizenship to register to vote beyond certifying under oath that one is a U.S. citizen.  Under Arizona law, however, voter registration forms that are not accompanied by sufficient proof of U.S. citizenship are rejected. 

Prof. Franita Tolson

Unfortunately, the arguments in the case are premised on the same erroneous assumption that animates most of the Supreme Court’s election law jurisprudence—that the states, rather than the federal government, are sovereign over elections.  Justice Scalia, for example, criticized Arizona’s counsel for not challenging the federal form given “the refusal…to include on the form as additional State requirements the proof of citizenship.”  Similarly, Chief Justice Roberts suggested that the conflicting voter registration forms for state and federal elections are problematic because “you would end up with two different voter rolls.”   At least implicitly, these justices seem to believe that Congress has to defer to state voter registration requirements because states normally determine voter qualifications in all elections; moreover, congressional interference could lead to administrative chaos.     

Despite the presumption underlying these criticisms of the NVRA, however, the premise of state sovereignty over elections implicitly embraced by Justice Scalia and Chief Justice Roberts is only partially correct.  States are, for the most part, sovereign over state elections.  Yet the Constitution’s Elections Clause, by its very terms, deprives them of sovereignty over federal elections.   According to the text, states may choose the “Times, Places and Manner of holding Elections for Senators and Representatives,” but this authority is subject to Congress’s power to “at any time make or alter such Regulations.”  The Clause, with its initial allocation of power to the states, and its subsequent delegation to Congress of the power to alter state electoral arrangements, deprives the states of the hallmark of sovereign power: final policymaking authority.  While sovereignty is certainly not an uncontested concept in law or politics, the finality of an entity’s decision-making authority is a baseline that the Court has often looked to in determining what “sovereignty” actually entails.  With respect to the Elections Clause, Congress can preempt state law, thereby retaining the final word on federal elections while the states lack similar preemptive authority.

Congress’s power to modify state election laws that govern federal elections should not be understated.  The Framers of the Constitution rejected a congressional negative over all state laws because they believed it would have sharply limited state sovereignty.  The Elections Clause, in their view, represented a compromise of sorts: it gives Congress the ability to veto state laws in a very limited but important circumstance—when the laws apply to federal elections.   The Framers feared that the states would try to cripple the federal government by failing to hold federal elections, and Congress’s ability to “alter or modify” state laws would prevent this situation from occurring.  Given this history, the idea that Congress has to demur to state voter registration requirements in the context of federal elections, as some of the justices presume, is erroneous.  Indeed, the practical reality of compliance with the NVRA may very well mean that a state has to maintain two separate voter registration rolls which, although inconvenient, is not inconsistent with Congress’s authority to demand a separate standard for federal elections.  Similarly, the federal government can refuse to incorporate additional state qualifications into its registration form for federal elections.  The Elections Clause makes it pretty clear that Congress, and not the states, has the last word on regulations that affect federal elections. 

Franita Tolson is the Betty T. Ferguson Professor of Voting Rights at the Florida State University College of Law.  Her previous post to this Blog discusses the oral argument in Shelby County V. Holder, the case challenging Section 5 of the Voting Rights Act.