GUEST BLOG: Does Congress have authority to set voter qualifications for federal elections?

By Franita Tolson, 
Betty T. Ferguson Professor of Voting Rights at
Florida State University College of Law

In Arizona v. Inter Tribal Council of Arizona, the U.S. Supreme Court held the National Voter Registration Act (“NVRA”) preempted Arizona’s Proposition 200, which required documentary proof of U.S. citizenship to register to vote in federal elections.  The NVRA, which provides that all states must “accept and use” a uniform federal form to register individuals to vote, requires only that individuals attest to U.S. citizenship, but does not require documentary proof.

Prof. Franita Tolson

On the surface, the Court’s decision appears to vindicate federal authority by recognizing Congress’s broad power under the Elections Clause to regulate federal elections.  Pursuant to the Clause, 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.”  According to the Court, Congress’s authority under the Elections Clause is not subject to the usual presumption against preemption, where the Court assumes that Congress does not intend to preempt state authority in enacting legislation absent explicit language to the contrary.  Rather, Congress’s authority to “make or alter” state legislation pursuant to the Elections Clause is, by definition, an intent to preempt.  Thus, Arizona’s additional requirement for voter registration must give way to the NVRA’s less onerous registration regime for federal elections.

However, buried in this apparent victory for federal authority is language that should alarm voting rights groups while comforting the most ardent advocates of states’ rights.  Although the Court rejected Arizona’s argument that the federal form would not allow the state to collect the information it deemed necessary to assess citizenship status, the Court did so while agreeing with Arizona that the states, and not Congress, have plenary authority over prescribing voting qualifications.  According to the Court, the Elections Clause, which is limited to setting the “Times, Places, and Manner of holding elections,” confers no authority on Congress “to make or alter” voter qualifications.  Instead, these qualifications are linked to the state franchise by various provisions of the Constitution, including Article I, Section 2, Clause 1 (providing that electors for the House of Representatives “shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature”) and the Seventeenth Amendment (the same provision, but for the election of senators).  As commentators such as Rick Hasen, Marty Lederman, and Spencer Overton have observed, this narrow view of congressional authority appears to call into question several significant pieces of federal legislation, and it limits Congress’s ability to address state felon disenfranchisement laws.  In addition, it casts doubt on the validity of the Court’s 1970 decision in Oregon v. Mitchell, which held that Congress could lower the voting age to 18 in federal, but not state, elections.

These are not the only landmines lurking in the decision.  Indeed, the most troubling aspect of the majority opinion is that it appears to tell a compelling narrative about the scope of congressional authority over elections, a narrative based firmly in the constitutional text.  In reality, this narrative is woefully incomplete.  It is true, as the Court contends, that Congress’s authority over voter qualifications for state and federal elections is not plenary, but the Fourteenth and Fifteenth Amendments significantly expanded congressional authority over voter qualifications in both state and federal elections.  In particular, section 2 of the Fourteenth Amendment allows Congress to reduce a state’s representation in the House of Representatives for abridging the right to vote in state and federal elections for “any reason except for participation in rebellion, or other crime,” and section 1 of the Fifteenth Amendment prohibits states from abridging the right to vote on the basis of race.  Congress has significant authority to alter voter qualifications pursuant to their enforcement authority under these Amendments, both of which give Congress the “power to enforce, by appropriate legislation, the provisions of this article.”  In some circumstances, requiring additional documentary evidence of citizenship, contrary to federal requirements, could be characterized as an “abridgment” of the right to vote under section 2 of the Fourteenth Amendment and therefore subject to regulation under section 5 of that Amendment.  Similarly, adducing additional evidence of citizenship could have a disproportionate impact on certain minority groups, leading Congress to use its authority under section 2 of the Fifteenth Amendment to bar this additional requirement.

In Arizona v. Inter Tribal Council, the Court rightly recognizes that the area of voting and elections is unique, but completely misses that the story of the Elections Clause has to be told in light of the Reconstruction Amendments and expanded congressional authority over voter qualifications.                

Franita Tolson is the Betty T. Ferguson Professor of Voting Rights at the Florida State University College of Law.  Read her previous posts for Justice Watch

AFJ Responds to Supreme Court decision in Arizona "motor voter" case

Alliance for Justice President Nan Aron released the following statement today in response to the Supreme Court decision in Arizona et. al. v. Inter Tribal Council of Arizona, et. al.:

We are pleased that the majority recognizes the will of Congress in providing a simple and efficient means of registering to vote that removes barriers for Americans across the country in reaching the polls.   The majority wisely prohibited Arizona from imposing new burdens on the right to vote that are inconsistent with clear federal law.

Key aspects of this case are discussed, with excerpts from the oral arguments here.

Alliance for Justice is a national association of over 100 organizations, representing a broad array of groups committed to progressive values and the creation of an equitable, just, and free society. Through our justice programs, we lead the progressive community in the fight for a fair judiciary, and through our advocacy programs, we help nonprofits and foundations to realize their advocacy potential.

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.