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.

The OTHER voting rights case reaches the Supreme Court

The legal issues are different; the stakes are similar

The first thing Jesus Gonzalez did after completing the naturalization ceremony that made him an American citizen in 2005 was to try to exercise the most fundamental right of citizenship: the right to vote.

He filled out a voter registration form correctly. He provided the number for his certificate of naturalization. He signed an oath, under penalty of perjury, that he was a citizen. In short, he did everything the United States requires to register to vote in federal elections.

But Mr. Gonzalez had just become a citizen in Arizona, a state that keeps trying to put up barriers to poor people and people of color when they try to vote. In 2012, the state became notorious for its voter suppression efforts. But those efforts actually began long before this past election.

In 2004, Arizona passed a referendum which added burdensome state requirements beyond the simple guidelines in federal law. So the state turned Gonzalez down. He tried again, this time using his driver’s license number. But the state said the license was too old, and turned him down again. Finally, Mr. Gonzalez paid what amounts to a de facto poll tax: $112.95 to get a passport, in order to provide proof of citizenship.

He is not alone. Since the Arizona law took effect, more than 30,000 people had their voter registration forms rejected, without any evidence that the applicants were illegitimate. Today, they get their day in court.

At issue is the National Voter Registration Act, a law passed 20 years ago to provide a standardized, simple way for Americans to register to vote in federal elections. The law provides for a form prospective voters can fill out and mail to state boards of elections. States are required to "accept and use" the form. The law also requires the form be made easily available in many offices, including Departments of Motor Vehicles. That's how the law became known as the "motor voter" law.

The law was challenged by groups ranging from the Arizona Hispanic Community Forum to Common Cause and the League of Women Voters. Jesus Gonzalez is one of the plaintiffs in the suit, State of Arizona et. al., v. The Inter Tribal Council of Arizona, Inc., et. al.

A three-judge panel of the 9th Circuit Court of Appeals threw out the law. They said the federal law takes precedence and states have no right to add their own requirements. One of the judges was retired Supreme Court Justice Sandra Day O’Connor. (Retired Supreme Court justices sometimes hear cases in lower federal courts.) The full 9th Circuit meeting en banc – that is, with all of the judges hearing the case – affirmed that decision.

When it passed "motor voter," Congress made clear it had no interest in the kind of stunt Arizona is trying to pull. Congress specifically rejected an amendment to allow states to do what Arizona now is doing anyway - requiring people to submit documents proving their citizenship, documents that often are difficult for poor people, the elderly, new citizens, and active-duty military to provide. If Arizona wins in the Supreme Court, it could encourage other states to throw up similar roadblocks.

As always when a state seeks to suppress the rights of poor people and people of color to vote, the effort is cloaked in the mantle of curbing "voter fraud." But this kind of fraud – in which people who have no right to vote show up at the polls and vote anyway – is nearly nonexistent. And there is no evidence that the form provided under the motor voter law ever has been used to register fraudulently.

Perhaps most important, the Constitution is absolutely clear about where authority lies. It says Congress has the right to determine the "times places and manner" of federal elections.

In another case involving voting, Justice Scalia made headlines last month, suggesting that Section 5 of the Voting Rights Act, which he called a "racial entitlement," should be overturned because he could read the minds of members of Congress when they reauthorized the law by nearly unanimous votes – and he didn't like what he imagined those members of Congress were thinking. Here, Congress clearly rejected a proposal to allow states to pass additional requirements that would surpass the basic guidelines of the NVRA.

So upholding the 9th Circuit and striking down the Arizona law should be an easy call.

"We should all have a right to vote in this country," says Jesus Gonzalez. "I want to have a voice in the United States."

Soon we'll know if the Supreme Court will do its duty and allow American citizens their right to "a voice in the United States" or if the majority will help Arizona try to silence that voice.

Hear NPR's story about the case.