Down with Voter Suppression

(AP Photo/J. David Ake)

Arizona's Proposition 200, which passed in 2004, combined two important conservative priorities: voter suppression and anti-immigration demagoguery. It required Arizona voters in federal elections to provide evidence of citizenship that went beyond the requirements of federal law. Today, the Arizona provision was struck down by the Supreme Court, with even two of the Court's most conservative members ultimately unpersuaded that the Arizona law was legal. This decision is an important victory for the voting rights, even if some of the language in the Court's opinion is more sympathetic to Arizona's ends than is appropriate.

Today's case involved a question of statutory interpretation rather than the Constitution. The key issue was whether Prop 200 conflicts with the Motor Voter Act, the 1993 law creating a uniform form to streamline federal vote registration by mail. Under the Supremacy Clause of Article VI of the Constitution, conflicts between state law and a valid federal law are resolved in favor of the latter. In this case, the Arizona law's detractors challenged that Prop 200 was "pre-empted" by the Motor Voter law. The Supreme Court today held that it was.

The crucial language is the statutory requirement that states "accept and use" the federal form. It's hard to square a demand for more documentary proof than is required by the federal form with the "accept and use" requirement. Given the explicit goals of the legislation—to streamline the voter-registration process and to increase voter registration—allowing Arizona to require addition burdens not required by the federal form would be nonsensical. As the majority concluded, "there is no compelling reason not to read Elections Clause legislation simply to mean what it says." States can create parallel systems that allow voters to register for both state and federal elections, but it cannot alter the requirements of the federal registration form and must accept it for federal elections.

While the result in today's case is not necessarily shocking, the author certainly is. Antonin Scalia, who wrote for the Court's 7-2 majority, made it clear during the oral argument that he held the federal requirements in question in complete contempt. As a result, the opinion today is a rather narrow and grudging affirmation of the rights of Arizona voters (which is presumably why Chief Justice Roberts assigned him the opinion.) Scalia's opinion concludes by providing a road map for Arizona to challenge the regulations of the Election Assistance Commission: "Arizona may, however, request anew that the EAC include [a proof of citizenship] requirement among the Federal Form’s state-specific instructions, and may seek judicial review of the EAC’s decision under the Administrative Procedure Act." It's possible that there will be a similar attempt by Arizona to burden voters that ends up in federal court.

Scalia's opinion combines his reluctant upholding of federal power with misguided paeans to states's rights in the context of federal elections. Scalia quotes James Madison as asserting that allowing excessive federal regulation of voter qualifications would "by degrees subvert the Constitution." It is very odd to approvingly quote this in 2013, given that few things have subverted the Constitution as effectively as giving states the rights to determine the qualifications of voters. For example, the glories of "local control" allowed more than a dozen states to systematically disenfranchise African American voters for nearly a century after the passage of the Fifteenth Amendment. This language should make clear that any optimism today's case might generate about the forthcoming ruling about the constitutionality of the Voting Rights Act would be misplaced.

Still, Scalia deserves some measure of credit for recognizing that his role is not to determine whether federal law represents good policy, but to uphold it in the case of a conflicting state regulations. Justices Alito and Thomas were unwilling to do the same, arguing that there should be a strong presumption against reading a federal statue as pre-empting state law which, if applied to this case, they argue, would save the Arizona law. (Scalia argued that the presumption against pre-emption was inappropriate to the Elections Clause: "Because the power the Elections Clause confers is none other than the power to pre-empt, the reasonable assumption is that the statutory text accurately communicates the scope of Congress’s pre-emptive intent." Justice Kennedy, in a brief concurrence, rejected this argument but argued that it doesn't matter because the pre-emption was unambiguous.) Alito's dissent asserted that states should only be required to accept the federal form "as a meaningful part of the registration process." Alito's reading, however, allows states to frustrate the objectives of the statute, something we can safely assume Congress didn't intend.

It should be noted, however, that the presumption against preemption expressed by Thomas and especially Alito in this case is highly selective. When the rights of corporations rather than voters were involved, Alito and Thomas were both willing to find that federal law preempted state law even though the statutory language of the federal law in question clearly did not conflict with the state's. In fairness, Thomas has at least sporadically been willing to apply a strong presumption against pre-emption when it conflicts with corporate interests. Alito's presumption against pre-emption extends exactly as far as pre-emption is inconsistent with Republican policy objectives.

Even if the language in the opinion is less than ideal, today's case is nonetheless an important victory for Arizona's voters. More than 30,000 people were denied their right to vote by Prop 200, which is meant to combat a problem (in-person voter fraud) that is for all intents and purposes nonexistent. Congress attempted to address this problem in 1993, and the Supreme Court was correct to prevent Arizona from subverting federal law.

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