Supreme Court argument recap in Arizona v. The Inter Tribal Council of Arizona


Posted by AzBlueMeanie:

Lyle Denniston has a recap of oral argument before the U.S. Supreme Court this morning of Arizona's Prop. 200 voter registration case. Argument recap: Does “may only” mean “shall only”?

Anyone entering the Supreme Court’s chamber Monday morning expecting
constitutional drama over the right to vote had to come away quite
disappointed.  It took all of fifty minutes of a one-hour argument to
get to any constitutional issue, most of the Justices wanted to focus on
what “may only” means in a federal law, and one Justice pronounced the
current federal-state voter registration regime “a crazy system.”  In an
era when very heated debates over curbing voters’ rights regularly
occur in political circles, there was none of that as the Court heard Arizona v. The Inter Tribal Council of Arizona (12-71).

At the center of the case is an Arizona law, approved by the state’s
voters nine years ago, that requires a would-be voter seeking to
register to show proof of U.S. citizenship as an additional requirement
besides submitting a federal form which includes a question — enforced
by possible perjury prosecution — asking whether or not one is a

Justice Antonin Scalia, who started out in the argument by
criticizing Arizona for not filing the right kind of legal challenge,
set the tone for the rest of the argument by trying to pry out of three
lawyers what the difference is between “may only require” and “shall.” 
The federal “motor voter” law, seeking to streamline the process of
signing up to vote, mandates a federal form and puts supposedly strict
limits on states’ ability to add other requirements.  It says that they
may use some ways to verify a claim of voter eligibility, but “may
require only” a short list of added information — and proof of
citizenship is not one of those things.

Scalia’s evident purpose was to show sympathy for Arizona’s argument
that its requirement of proof of citizenship is not incompatible with
the federal law or the federal form, and thus can survive being
“preempted.” Since Congress only specified that states “may require
only” some information, and gave them explicit permission to find ways
to verify eligibility, Arizona has argued that the two mandates can
exist side by side.  Scalia seemed clearly to agree, as did Justice
Samuel A. Alito, Jr.

It was Alito who, as he was trying to sort out how two governments,
one national and one state, can together manage who gets to vote,
suggested that the existing arrangement ”seems like a very strange
system” and then went further and said it “seems like a crazy system.” 
By that point in the argument, the Court was very far from displaying a
keen interest in how the Constitution’s Elections Clause is supposed to
work to make sense of voter registration.

* * *

Arizona’s Attorney General, Thomas C. Horne of Phoenix, made only a
brief, passing mention in his final comments of the state’s
lately-developed argument that the Constitution gives the states
exclusive power to decide who may vote, even in federal elections.  And
no Justice even alluded to that argument.

The only constitutional point, raised by Justice Anthony M. Kennedy
when the hour’s argument had only ten minutes remaining, was whether the
Ninth Circuit Court had used the wrong constitutional analysis in
judging Arizona’s proof of citizenship requirement to be invalid because
it conflicted with the federal registration law.   The Circuit Court
said it would not use the usual “preemption” analysis in judging the
validity of a state law when Congress has acted in the same field,
because, the Circuit Court contended, Congress gave the states very
little role in deciding how to conduct elections for federal officers —
the presidency and members of Congress.

Kennedy called that “the Ninth Circuit’s new test,” and commented
that “it seems to me that it ignores the state’s very strong interest in
the integrity of its elections, and fails “to give sufficient deference
to the state.”   Attorney Millett answered that it was not important
what the preemption test was, because Arizona had gone beyond what the
Elections Clause allows states to do for federal elections.  After all,
she said, the Constitution did not give states any “reserve power” to
control election qualifications, a power that would be protected
independently by the Tenth Amendment.

Although Kennedy was the only member of the Court to raise the point
about preemption, if others became interested in it, it could have a
strong influence on how the Arizona law fared in the coming decision

If the usual form of preemption analysis were used, Arizona’s law might
have a significantly greater chance of surviving, because that analysis
is supposed to be deeply respectful of states’ prerogatives.

Kennedy, who might well have the controlling vote, in view of how the
overall argument went, at one point showed some skepticism about
states’ power — under the federal registration law — to add complicating
requirements to the registration regime.  A simple postcard method of
registration, the Justices noted, was intended by Congress to be
“presumptive evidence” that a person was eligible to register, and
adding other requirements could mean that “the whole utility of this
single form is gone.”

Arizona’s proof of citizenship requirement drew some sharp criticism
from Justices Ruth Bader Ginsburg, Elena Kagan, and Sonia Sotomayor. 
Justice Stephen G. Breyer, who at some points seemed to be inclined
toward Arizona’s claims that it was not going beyond what Congress had
permitted, came around to the other side as the argument moved on.

UPDATE: Transcript of oral argument (.pdf).

I don't make predictions of how the Court will rule. I will simply say that the Roberts Court has demonstrated a disturbing hostility towards voting rights. David Cole at New York Review of Books has an in-depth look at the hostility of the Roberts Court to voting rights (pay wall article). The Roberts Court vs. Voting Rights (snippet):

On February 27, 2013, the Supreme Court’s conservative justices
appeared ready to abandon all judicial restraint as the Court heard oral
argument in Shelby County v. Holder, a case from Alabama
challenging the constitutionality of a central provision of the 1965
Voting Rights Act. That provision requires specific states and counties,
each with clear records of denying blacks and others the right to vote,
to get federal approval before they change their election laws. The
Court has upheld the provision, known as Section 5, on four previous
occasions, reasoning that the Constitution’s Fourteenth and Fifteenth
Amendments expressly assign Congress broad power to enforce voting
rights.This time around, though, it looks like the Court will
condemn the very provision it has repeatedly blessed. If so, the
decision would mark the first time since 1875 that the Court has struck
down a federal voting rights statute. . . the term could shape the Roberts Court’s legacy as one of the most
hostile since the Civil War to efforts to redress continuing racial

If you want to do something about this travesty of justice, it will take the enactment of a Voting Rights Amendment to the U.S. Constitution securing the right to vote as a fundamental right of citizenship that shall not be infringed at law. Several versions of the amendment have been introduced in Congress, but the Tea-Publicans  who are hostile to voting rights will never approve it and send it to the states for ratification. Vote their sorry asses out of office and elect Democrats who will approve the amendment and send it to the states for ratification.


  1. This is the typical “my personal experience must be true for everyone else” form of narcissism. I have been doing voting rights work for over 30 years. Sonoran Sam in the comments is far more accurate than he realizes. There are many people who do not have easy access to these documents.

    In any event, the issue in this case is federal preemption — the federal government acted to impose a uniform system of voter registration for federal elections. Arizona is trying to “add on” a requirement that Congress specifically considered and rejected. Arizona is precluded from doing so by law. This is yet another “states’ rights” hissy fit by Arizona.

  2. Funny, I’m a bald-headed old Anglo, and I worry about this law.

    What happens if you were born on a reservation, and no paper birth certificate exists?
    What if you’re a student who spends 98 percent of your time in AZ, considers yourself an Arizonan, but your birth documents are in another state with your parents?
    What happens if you’re another older Anglo who does not have access to your birth certificate, and obtaining a new one requires you to write to another state, pay money you can’t afford, and then forces you to wait for some bureaucrat to mail a copy.

    And of course, what happens if, like the plaintiff, you are a naturalized citizen who has a right to vote, but the bureaucrats have not caught up on paperwork showing that you have earned citizenship?

    I could go on, but the examples above affect a large portion of our populace, and I don’t think it’s an accident. The purpose of this law is to suppress voting, not to dissuade instances of fraud, which are miniscule at best and virtually non-existent in fact.

  3. Funny… I’m a hispanic, what is wrong about asking me for ID. What fool trusts what a person simply says when it comes to something as voting fraud. You get a slap in the wrist and thats it? In court you can go to jail.

    I am naturalized citizen, stop acting as if hispanics are some weak minority that cant clean their own asses. All it takes is a day to get your necessary papers and it wont be the end of the world. Not to mention we aren’t really minorities… for of us unfortunately reproduce like humanity faces extinction so what is the real reason anyone is against proving that you are an actual citizen?

    If they ask me, I’ll simply go to my bank get from my security box my citizenship diploma, form I filled, and my now outdated green card. There problem solved. What part of that is “harmful” to little hispanic like me?