June 18, 2013
At the end of last month, I wrote about the five most anticipated cases currently awaiting a decision by the Supreme Court this term.
The Supreme Court announced quite a few decisions on Monday, but unfortunately, the most anticipated rulings on same-sex marriage, affirmative action in school admissions, and the Voting Rights Act were not among them.
Nevertheless, we did get an opinion on one of the cases in our top five: Arizona v. The Inter Tribal Council of Arizona, Inc.
As discussed in our top five post, the case started as a challenge to an Arizona law, enacted in 2004 via popular vote, that requires Arizona voters to demonstrate their U.S. citizenship prior to both registering to vote and actually casting their ballots.
The National Voter Registration Act of 1993 (NVRA) requires states to “accept and use” a uniform federal form to register voters for federal elections. In contrast to Arizona’s requirements, the federal form “requires only that an applicant aver, under penalty of perjury, that he is a citizen.”
The dispute in the case was over whether these requirements could exist side-by-side, and if not, whether the states or the federal government had ultimate authority over regulating elections.
Here’s what the Constitution has to say about it: The Elections Clause of Article I, Section 4, Clause 1 gives states the authority to decide “the time, place and manner” of elections, but bestows upon Congress the authority to “make or alter such regulations.”
In Inter Trial Council, the Supreme Court interpreted the Elections Clause in this circumstance to mean that, while the States have “the duty to prescribe the time, place, and manner of electing Representatives and Senators,” the Clause “confers on Congress the power to alter those regulations or supplant them altogether.”
In other words, the Court found that, where voting regulations conflict between federal and state laws, the federal laws will win.
Since the Court found the NVRA’s form to conflict with Arizona’s documentary requirements, Arizona’s law was preempted.
But what of the “presumption against preemption” – the principle established by the Court’s previous Supremacy Clause rulings that holds that, when Congress and the states act in the same regulatory field, state laws will only be supplanted if Congress says so explicitly?
According to this new ruling, “preemption” works differently under the Elections Clause than under the Supremacy Clause. This is because the sole power of the Elections Clause “is the power to preempt.” Thus, according to the ruling, whenever Congress invokes the power of the Elections Clause, it is presumed that a state law will be superseded.
Essentially, to the majority, every time that Congress invokes the Elections Clause, there is an automatic declaration that the legislation in question is intended to preempt state laws in the same field.
The ruling seems pretty bleak for state election authorities. After all, all state-level voter ID laws across the country would be instantly invalidated by a cleverly-written piece of legislation passed by Congress.
Is there a silver lining for the states?
Well, sort of.
The majority held that, although the NVRA precludes states from requiring additional information from an applicant beyond that required by the federal form, it doesn’t stop states from “deny[ing] registration based on information in their possession establishing the applicant’s ineligibility.”
In addition, the opinion definitively stated “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.” As such, the states may submit a request to the Election Assistance Commission (EAC), the agency responsible for the administration of the federal form, to include state-specific instructions on the form.
Should the EAC reject or fail to act on that request, a state may challenge the agency’s action in a suit under the Administrative Procedure Act.
According to the majority, that option is still available to Arizona. In such a suit, Arizona would have the opportunity to establish in a reviewing court that the federal form’s “mere oath” is insufficient “to effectuate its citizenship requirement” and that the EAC must include Arizona’s more stringent evidentiary requirement on the federal form.
This is only “sort of” a silver lining because bringing an APA challenge, as the majority suggests Arizona do here, has actually never really been done. There aren’t established procedures for it, and I’m not sure that anyone would know exactly how to handle it.
Justice Thomas seemed to understand this, since, in his dissent, he referred to the APA route as “dubious” and “an exercise in futility.”
Nevertheless, it’s quite likely that Arizona will certainly attempt the route, so we’ll hopefully be able to find out if a state will have any luck taking the majority’s suggestion.
From how it looks now, however, the Supreme Court decision was a huge victory for congressional election regulation powers.