Federal voter registration form preempts Arizona’s Prop. 200 proof of citizenship requirement

Posted by AzBlueMeanie:

The U.S. Surpeme Court issued five opinions this morning, but one opinion comes from Arizona, the Inter Tribal Council of Arizona, Inc. challenge to Arizona's Prop. 200 (2004) requirement of proof of citizenship. The federal voter registration form only requires the voter to attest to citizenship status.

In a 7-2 decision, the U.S. Supreme Court held in Arizona v. Inter Tribal Council of Arizona, Inc. that Arizona's proof of citizenship requirement is preempted by the federal law requiring that states use the federal voter registration form. Justices Thomas and Alito both filed dissenting opinions.

Here is a copy of the opinion.
Arizona v. Inter Tribal Council of Arizona, Inc.

Disgraced recalled Senator Russell Pearce and Governor Jan Brewer (who was Secretary of State at the time) are going to have a cow today over the Court's opinion.

I will have more when I have time to read through the 51 page opinion.

UPDATE: Today's win for the Inter Tribal Council of Arizona, Inc. will be short-lived, because Justice Antonin Scalia's majority opinion lays out the administrative path for Arizona to follow to have the proof of citizenship requirements of Prop. 200 included in the federal voter registration form, and possible future litigation.

Here are highlights from Justice Scalia's majority opinion:

The National Voter Registration Act of 1993 (NVRA) requires States to “accept and use” a uniform federal form to register voters for federal elections. 42 U. S. C. §1973gg–4(a)(1). That “Federal Form,” developed by the federal Election Assistance Commission (EAC), requires only that an applicant aver, under penalty of perjury, that he is a citizen. Arizona's Prop. 200 (2004) requires voter-registration officials to “reject” any application for registration, including a Federal Form, that is not accompanied by documentary evidence of citizenship.

The Elections Clause imposes on States the duty to prescribe the time, place, and manner of electing Representatives and Senators, but it confers on Congress the power to alter those regulations or supplant them altogether.

In practice, the Clause functions as “a default provision; it invests the States with responsibility for the mechanics of congressional elections, but only so far as Congress declines to pre-empt state legislative choices.”

This Court has said that the terms “Times, Places, and Manner” “embrace authority to provide a complete code for congressional elections,” including regulations relating to “registration.”

Arizona’s appeal to the presumption against pre-emption invoked in this Court’s Supremacy Clause cases is inapposite. The power the Elections Clause confers is none other than the power to pre-empt. Because Congress, when it acts under this Clause, is always on notice that its legislation will displace some element of a pre-existing legal regime erected by the States, the reasonable assumption is that the text of Elections Clause legislation accurately communicates the scope of Congress’s pre-emptive intent.

The statute empowers the EAC to create the Federal Form, §1973gg–7(a), requires the EAC to prescribe its contents within specified limits, §1973gg–7(b), and requires States to “accept and use” it, §1973gg–4(a)(1). It is improbable that the statute envisions a completed copy of the form it takes such pains to create as being anything less than “valid.”

States retain the flexibility to design and use their own registration forms, but the Federal Form provides a backstop: No matter what procedural hurdles a State’s own form imposes, the Federal Form guarantees that a simple means of registering to vote in federal elections will be available.

We conclude that the fairest reading of the statute is that a state-imposed requirement of evidence of citizenship not required by the Federal Form is “inconsistent with” the NVRA’s mandate that States “accept and use” the Federal Form. Siebold, supra, at 397. If this reading prevails, the Elections Clause requires that Arizona’s rule give way.

We note, however, that while the NVRA forbids States to demand that an applicant submit additional information beyond that required by the Federal Form, it does not preclude States from “deny[ing] registration based on information in their possession establishing the applicant’s ineligibility.” The NVRA clearly contemplates that not every submitted Federal Form will result in registration.

Arizona is correct that the Elections Clause empowers Congress to regulate how federal elections are held, but not who may vote in them. The latter is the province of the States. See U. S. Const., Art. I, §2, cl. 1; Amdt. 17. It would raise serious constitutional doubts if a federal statute precluded a State from obtaining the information necessary to enforce its voter qualifications. The NVRA can be read to avoid such a conflict, however . . .

The NVRA permits a State to request the EAC to include state specific instructions on the Federal Form, see 42 U. S. C. §1973gg–7(a)(2), and a State may challenge the EAC’s rejection of that request (or failure to act on it) in a suit under the Administrative Procedure Act. That alternative means of enforcing its constitutional power to determine voting qualifications remains open to Arizona here.

Arizona did not challenge that agency action (or rather inaction) by seeking APA review in federal court, see Tr. of Oral Arg. 11–12 (Arizona), but we are aware of nothing that prevents Arizona from renewing its request.

Should the EAC reject or decline to act on a renewed request, Arizona would have the opportunity to establish in a reviewing court that a mere oath will not suffice to effectuate its citizenship requirement and that the EAC is therefore under a nondiscretionary duty to include Arizona’s concrete-evidence requirement on the Federal Form.

Arizona might also assert (as it has argued here) that it would be arbitrary for the EAC to refuse to include Arizona’s instruction when it has accepted a similar instruction requested by Louisiana.

We hold that 42 U. S. C. §1973gg–4 precludes Arizona from requiring a Federal Form applicant to submit information beyond that required by the form itself. Arizona may, however, request anew that the EAC include such a requirement among the Federal Form’s state-specific instructions, and may seek judicial review of the EAC’s decision under the Administrative Procedure Act.

The judgment of the Court of Appeals is affirmed.

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