June 17, 2013

"The National Voter Registration Act of 1993, allows voters to register using a federal form that asks, 'Are you a citizen of the United States?'"

"Prospective voters must check a box for yes or no, and they must sign the form, swearing under the penalty of perjury that they are citizens. The state law, by contrast, required prospective voters to prove that they were citizens by providing copies of or information concerning various documents, including birth certificates, passports, naturalization papers or driver’s licenses, that are available only to people who are in the state lawfully."

The Supreme Court, 7-2, said the federal law preempted the state law, Adam Liptak explains:
Much of Justice Scalia’s majority opinion concerned the meaning of the phrase “accept and use.” Arizona officials argued that they do accept and use the form, but also require additional information. An airline may accept and use e-tickets, they said, but also require identification....

In the decision on Monday, Justice Scalia said the phrase “accept and use,” when understood in context, meant that the federal form had to be accepted as sufficient.  
Here's the opinion,  Arizona v. Inter Tribal Council. I see that Justice Scalia, writing for the majority, considered using a presumption against preemption that "rests on an assumption... that 'Congress does not exercise lightly' the 'extraordinary power' to 'legislate in areas traditionally regulated by the States.'" (The internal quotes go to Gregory v. Ashcroft, a 1991 opinion that resolved an ambiguity in the federal Age Discrimination in Employment Act to preserve state laws that force judges into retirement at a specified age.)

In the Arizona case, Scalia said that the presumption doesn't apply because Congress enacted the law under the Elections Clause. (Art. I, §4, cl. 1: "The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the places of chusing Senators.”)

Justice Kennedy, concurring, rejected the idea of "a hierarchy of federal powers so that some statutes pre-empting state law must be interpreted by different rules than others, all depending upon which power Congress has exercised." It's still an area of traditional state regulation, and it would make more sense to question the presumption — he says, citing an old Scalia concurrence that did just that — than to minimize the state's concern, given that they are acting in "their own historic role in the conduct of elections." But Kennedy concurs because there's no ambiguity in the National Voter Registration Act that the presumption would resolve. The preemption is clear.

Only 2 justices dissented. Justice Thomas said the Constitution gives the states the exclusive authority over voter qualifications and over whether those qualifications are met, so he adopted the narrower interpretation of the NVRA to avoid an unnecessary constitutional question. Justice Alito said that the Court got it "exactly backwards" when it rejected the presumption against preemption because of the Elections Clause. The Elections Clause manifests a reservation of "default responsibility" to the states, so Congress should have to "speak clearly" to displace the states as they carry out this function the Constitution explicitly assigned to them.

Alito took what had been Sandra Day O'Connor's seat on the court. As Liptak notes, Justice O'Connor was one of the 3 judges who initially heard the case in the 9th Circuit, and she was sitting in the courtroom today as the opinion was announced.

55 comments:

Achilles said...

So 9 smart people sat down and read the law and the constitution and came up with different answers. But these smart people live in DC. And most of these smart people somehow came to a conclusion that the federal government has supreme unalterable authority in elections. They also came to the conclusion that these same 9 smart people are the ultimate authority over every legislative decision everywhere.

I wish I was smart enough to decide I was in charge of everything, and give my fellow DC friends authority over those stupid hicks in the states. This is totally within the pervue of a limited government.

Oh and Simon is smart and we shouldn't even enter the conversation because we aren't informed enough. You have to go to Harvard or Yale and work in DC to be informed enough.

Oso Negro said...

Please, can anyone point me to data that demonstrates that the Federal bureaucracy, 95% DEMOCRATS aside from the armed forces, are serious about trying to control our border with Mexico? No real evidence in my lifetime, but plenty of data going the other way.

Ann Althouse said...

Face it. Federal law beats state law under the Supremacy Clause. Congress had an enumerated power to cover this -- unless you believe Justice Thomas -- and Congress didn't violate any rights, so the only question is whether both the federal and the state law could stand at the same time (that is, preemption).

Michael K said...

It is racist and abusive to require people to show proof that they are being honest when they sign that federal form.

We all know that.

Rabel said...

Tempting and wise as it would be to yield to the Professor's reading, I'll stick with my interpretation in the earlier post.

Stated another way, the federal law prempts in this case only because it does not, in fact, absolutely preempt the state's right to determine who is a qualified voter in that it allows for an administrative and judicial appeal. And the final answer to the question is left for another day.

That sounded much clearer in my head than it does in text.

Calypso Facto said...

Is it racist of the IRS to ask for proof of claims made on a signed federal form? Maybe we can all just claim whatever we like.

Ann Althouse said...

"It is racist and abusive to require people to show proof that they are being honest when they sign that federal form."

No one needed to say that it violated rights to require this proof. The point is the feds said checking the box is enough, and when that is viewed as preempting additional requirements, that's the answer. Checking the box is enough. If you don't like it, ask Congress to change it. Then there could be a question about whether it violates rights.

El Pollo Raylan said...

Ann Althouse said...
Face it. Federal law beats state law under the Supremacy Clause. Congress had an enumerated power to cover this -- unless you believe Justice Thomas -- and Congress didn't violate any rights, so the only question is whether both the federal and the state law could stand at the same time (that is, preemption).

Also face that someone could lie, swearing under the penalty of perjury that they are a citizen, and vote, unless they were challenged.

It's a tough call.

jr565 said...

When you got to a porn site, and they ask you if you are 21, no one ever lies to get on the site and view porn who is under 21. It just NEVER happens.
Conservatives should send kids to the voting booth and have them swear the they are 21 and able to vote. Can the state deny them the right to vote? They signed Yes on the form! Let every vote count.

And Scalia should retire.

El Pollo Raylan said...

Didn't the highest officer of the law, sworn into office in 1993, lie under oath?

Or not?

AJ Lynch said...

As I said this morning, the Repubs need better lawyers..this SCOTUS decision uses a law passed in 1993 [Motor Voter Law] as its legal basis. And I bet Repubs who supported that law [as a convenience to voters] never dreamed it would be twisted and bastardized so that the feds could say we can not ask for proof of citizenship.

El Pollo Raylan said...

If perjury is no obstacle from the top on down to the bottom, then there is no rule of law.

Floutation is groovy.

AJ Lynch said...

Today, Repubs could show they have balls by demanding the motor voter law be changed to require proof of citizenship and only after that change is signed into law, will the House Repubs even consider any change to immigration laws.

Rabel said...

My evidence:

Scalia:

"Since, pursuant to the Government’s concession, a State may request that the EAC alter the Federal Form to include information the State deems necessary to determine eligibility, see §1973gg–7(a)(2); Tr. of Oral Arg. 55 (UnitedStates), and may challenge the EAC’s rejection of that request in a suit under the Administrative Procedure Act, see 5 U. S. C. §701–706, no constitutional doubt is raised by giving the “accept and use” provision of the NVRA its fairest reading. That alternative means of enforcing its constitutional power to determine voting qualifications remains open to Arizona here."

Scalia quoting Hamilton:

"Prescribing voting qualifications, therefore, “forms no part of the power to be conferred upon the national government” by the Elections Clause, which is “expressly restricted to the regulation of the times, the places, and the manner of elections.”

jr565 said...

Do you swear your name is Mickey Mouse and that you live in Disneyland with your brother Goofy? Well ok then.
Please vote Mr. Mouse.

Carl said...

Federal law beats state law under the Supremacy Clause.

That is incomplete, professor. Constitutional Federal law beats state law. That's right there in the text. And it is an important distinction, as Congress routinely passes law that conflicts with state law and is also unconstitutional. Obamacare would be the best recent example, of course. There is a reasonable natural law argument that states are not only permitted but required to disdain unconstitutional Federal law.

Congress had an enumerated power to cover this

I think reasonable people can disagree. When I read the plain text I see that Congress can alter the "time, place and manner" of choosing Federal officeholders -- but I see nothing in the plain text that says Congress can make laws defining who is, and is not, a voter.

Disagree? Then why was the 19th Amendment necessary? Why couldn't Congress simply pass a law forbidding the states from denying the franchise to women, and have this Federal law trump any state constitution and law to the contrary under this selfsame "enumerated power?"

I don't see how Congress is powerless to prevent states from disenfranchising would-be voters who lack a Y chromosome, but can easily prevent states from disenfranchising would-be voters who lack a valid birth certificate or picture ID.

Rabel said...

And, importantly, he got Ginsberg, Kagan, Sotomayor and Breyer to sign off on those interpretations of Article 1, Section 2.

Zeb Quinn said...

Also face that someone could lie, swearing under the penalty of perjury that they are a citizen, and vote, unless they were challenged

And we just know , because they are all good and noble illiterate peasants, that they'd never do that way. And you know that thingie were they snuck in here through the desert in the middle of the night, carrying meth and cocaine and who knows what on their backs, and how they adopt fake social security numbers, do the identity theft trick, and such and so forth? Not their fault. It was we who forced them to do that.These folks would never lie!

jr565 said...

ID cards would also be valid for people to show they are who they say they are, and are of age, and live in the county. Even citizens. Why is this simply a matter of illegal immmigrants voting and not illegal voters voting?
What does the National Registration Acto fo 1998 ask about those other things.

Far be it from me to encourage voter fraud, but you know what? Republicans should commit voter fraud. Vote 3 times. Vote in one county then go to another county and vote again. Register your dead relatives and have them vote. If they ask if you are who you say you are, say yes. DOne deal. You can vote.

Carl said...

I should add, I actually don't think the 19th Amendment would be considered necessary today, if the issue came before this Federal government, any of its three branches.

That is, it were now made illegal for women to vote in any state -- let's just pick Alaska with Sarah Palin signing the law, ha ha -- then even in the absence of the 19th Amendment, I believe Congress would immediately pass a law reversing the Alaskan legislature, point to some random text or other in the Constitution, and the Supreme Court would ratify it. Nobody would hesitate.

That our great-grandfathers proceeded much more circumspectly, with a great deal more respect for what the Federal government can and cannot do, is I think a striking testament to how far we have devolved from a genuine federal republic in a mere 100 years.

Which means it's a lucky thing the 19th Amendment is in place. Otherwise, when enough disgusted youths convert to Islam and elect Congressmen who favor sharia law, it will be a little bit harder to take the vote away from women. The Supreme Court will have to really look for some penumbra or emanation that allows the plain text of the 19th Amendment to be ignored. Of course, after practising on the Second and Tenth, they'll be pretty good at it.

jr565 said...

have all your kids vote, even if they are only 10. They just look young. But they swear that they are 18. What are you going to do about it? Demand ID?
Then when you vote out the people who are fighting this, change the fucking rules so that the Supreme Court can't rule insanity based on a technicality.

Rabel said...

To put it another way, I think Antonin has invited Ginsberg, Kagan, Sotomayor and Breyer to go on a little fishing trip out on the lake. With Fredo.

Rabel said...

This fly-by-night amateur seems to largely agree with me.

El Pollo Raylan said...

If perjury is flouted from the top on down, and there is consequently a lesser rule of law, there will be less of need for law professors and greater need for gun dealers.

Xmas said...

If I read the pre-amble of Scalia's decision correctly, there is nothing stopping the state from researching the voter registration forms to see if the person's commited perjury and then charging them.

Arizona is not that big of a state, 6.5 million people. How many new voter registrations will they get in the run up to an election? 30 or 40 thousand? 100 thousand?

You could take 25 people in January, have them spend a month checking names and addresses against state tax rolls to filter out only questionable new registrations. You could end up with, what 1% (10%? 50%) of questionable names of possible perjurers whose lives you can turn completely upside down.

Come on Arizona, use the tools you have in front of you...

Titus said...

What happened to Scalia?

Next he will be voting for all the fags in the upcoming decisions. And if he does I will have to blame Cheney because they hunted and the dyke daughter probably hunted with them because she's a dyke and they do manly stuff like hunting.

jr565 said...

This is also from the opinion:
"On the other hand, however, the Court also ruled that Arizona can seek permission from federal officials to impose its proof-of-citizenship requirement. If it fails with that request, it can go to court and argue that it has a constitutional right to make proof of citizenship a binding requirement for all voters"
I suggest that Conservatives do that.

edutcher said...

So what does asking for verification hurt?

If AmnestyCare goes through with its national biometric database of every adult, this place will make Soviet Russia under Uncle Joe look like anarchy.

And the Supremes will punt (the ones that haven't had a visit from Solly an' da boys).

Titus said...

What happened to Scalia?

Or Roberts, for that matter.

Metadata?

Achilles said...

Ann Althouse said...
Face it. Federal law beats state law under the Supremacy Clause. Congress had an enumerated power to cover this -- unless you believe Justice Thomas -- and Congress didn't violate any rights, so the only question is whether both the federal and the state law could stand at the same time (that is, preemption).

6/17/13, 3:55 PM

Or you could say 7 out of 9 people who have a massive conflict of interest interpreted these laws to conflict in such a way that a state cannot verify citizenship to vote. Ever. It is almost like they can interpret the constitution to mean the federal government should control every facet of our lives including defining who the electorate is. The fact that 2 of these people disagreed means there are different ways to interpret these words.

Face it. The fact remains that really smart law professors and lawyer wannabes don't have to support their assertions. We have precedent! The federal government can find the phrases it wants and ignore the ones it doesn't.

Our country is going to fall because smart people are rationalizing our rights away. Smart people can come to a different conclusion than the one reached and for better reasons than the ones you are giving us.

El Pollo Raylan said...

Our country is going to fall because smart people are rationalizing our rights away. Smart people can come to a different conclusion than the one reached and for better reasons than the ones you are giving us.

Societal failure is well precedented if one is governed by case law. Something higher--called courage and vision--is needed to overcome the legalistic friction.

Dante said...

It seems the clause is limited to US representatives and congress people.

Can AZ have separate elections for president and AZ specific things?

who-knew said...

I agree with Carl @ 4:25. The constitution limits federal power to the time. place, and manner of electing federal officials. This law goes to none of the three unless you want to torture the meaning of 'manner' until it cries uncle. The states have always been in charge of voter registration and qualifications and I believe a supreme court with any respect for the constitution would recognize that.

jr565 said...

I take back my "Scalia should resign". It's a stupid decision, but since the scope is limited and Scalia isn't saying that its not unconstitutional to demand ID, I can't really fault him for concluding that one branch has precedence over another when it comes to election law.
It offers conservatives the remedy to fix the problem. Conservatives have to be willing to do it.

Ann Althouse said...

"Also face that someone could lie, swearing under the penalty of perjury that they are a citizen, and vote, unless they were challenged."

That has NO significance except as an argument to make to Congress to change the statute.

edutcher said...

Dante said...

It seems the clause is limited to US representatives and congress people.

Can AZ have separate elections for president and AZ specific things?


Chicago does.

Icepick said...

Rabel, I just don't think the Court much cares about reasoning as much as they do results. And if this comes back to the SC again, after going through the EAC process outlined in your earlier comments, I don't think Ginsberg, Kagan, Sotomayor and Breyer will have any problem changing to a different line of reasoning to insure that no proof of citizenship is required to be able to vote. I just don't trust them, or Roberts, Scalia or Alito for that matter, the exercise intellectual consistency in the face of naked political desires to import millions of peasants into the country and to make certain they vote to oust the old order.

Yes, I really am that cynical with respect to just about everyone involved in the federal government these days.

Ann Althouse said...

"That is incomplete, professor. Constitutional Federal law beats state law. That's right there in the text"

The Constitution is part of federal law. Of course, within the category of federal law, the Constitution is superior to statutes.

jr565 said...

THough isn't it funny that the very registration Act was tied into renewing your drivers license.

The legislation required state governments to allow for registration when a qualifying voter applied for or renewed their driver's license or applied for social services.

Ah, so they had access to ID cards. Why then is the idea its hard to get these cards something the democrats keep pushing?
It's been built into Voter Registaration for the longest that its tied to your ID.

Icepick said...

That has NO significance except as an argument to make to Congress to change the statute.

True legally, I suppose, but the fact that Congress wrote the law in this manner to begin with seems pertinent. How likely is Congress to admit to being wrong? How likely are the agitations of the few people that follow this kind of bullshit to change the law in a manner suitable to those of us who protest? I'd say the chance of either happening is approaching 1 in a million, and getting both to happen is about a 1 in a billion proposition.

Seriously, we can suppose that Congress is either extremely incompetent to have written the law this way, or that they knew exactly what they were doing. It's a pick 'em for which is worse.

Christy said...

XMAS, because it is a federal form, does AZ have standing to challenge the lies?

Christy said...

XMAS, because it is a federal form, does AZ have standing to challenge the lies?

traditionalguy said...

So the Dems send hundreds of millions of these sacred Government forms to South America and Central America for signatures along with stamped requests for absentee ballots. Poof, there are no more American elections.

tim maguire said...

"Manner" can be defined as needed to support the decision desired. The reality is, absent explicit instruction otherwise (and often even with it), the courts will side with the government over the people and the fed over the state.

There is no constitutional justification for this level of deference, but your typical judge is a statist and a coward. Looking to the courts for protection from governmental over reach is a remedy only for when all else has failed.

And since federal judges are not elected, there is very little you can do about it.

Astro said...

So SCOTUS says AZ can't require prospective voters to show an ID. It makes sense to me that the federal law would trump a state statute.

But - Does it forbid them from asking for an ID? Does it forbid them from requiring each registrar to tell each prospective voter that the penalty for perjury is prison?

Rabel said...

Icepick,

I'll check back in with you in about three years.

Douglas said...

If Prof. Althouse's interpretation is correct, Arizona can require proof of citizenship to vote in State elections, just not in federal elections.

veni vidi vici said...

These guys and gals on the bench are so frightened of making any real decisions, everything usually boils down to hyper-technical tinkering at the far margins. Is it sufficient to ask whether someone's a citizen? Is it substantively different to ask someone to demonstrate the veracity of their claim? Why, exactly, take their word for it if they're already required to show more proof if they want to fly a non-governmental airliner or open a private bank account - even where both these ID proof requirements are a matter of federal law!

"Matter of degree" cases are inherently arbitrary, and few places moreso than where the difference of degree isn't clearly injurious to anyone. Allowing this loosey-goosey stuff to go on with elections seems almost designed to undermine confidence in government, especially in light of everywhere else the gov't mandates ID and proof be shown in our society/economy.

RiverRat said...

And if they have only one ballot with state and federal offices up for choice...why can't they ask for ID. If the person wants to decline give them a Fed only ballot all of which will be subsequently reviewed for potential perjury...hmm

RiverRat said...

Hold state and and municipal elections separately and require ID. Hold a separate Federal election and bill DC for the cost.

veni vidi vici said...

Hold my beer.

Andy Krause said...

I totally agree with having separate ballots. Require verified registration for state elections and just leave the federal ballots in a pile in the corner for whoever wants to use them. The law escapes common sense all too often. So treat it for what its worth.

viator said...

J. Christian Adams dissents:

Left Loses Big in Citizenship-Verification Supreme Court Case

"First, Arizona can simply push the state forms in all state offices and online, and keep those federal forms in the back room gathering dust. When you submit a state form, you have to prove citizenship. Thanks to Justice Scalia, that option is perfectly acceptable. Loss for the Left. Victory for election integrity.

You might say, “That’s a small victory.” Nonsense. This was the whole ballgame to the groups pushing the Arizona lawsuit. They lost, period.

Next, when voters use a state, as opposed to a federal, form, they can still be required to prove citizenship. The federal form is irrelevant in that circumstance."

PJ Media

stlcdr said...

I think the whole ID thing is missing the point: While one can argue that signing a federal form indicates that Joe Bloggs is a legal US citizen, and eligible to vote, the ID is still required to inform the voting booth workers that the person before them is, indeed, Joe Bloggs.

This requires an ID from a trusted authority: a trusted authority that the voting establishment trusts.

With voting precincts, does this court ruling prohibit the state from determining where said person lives, and possibly other research to determine eligibility [to vote in that district].

Again, the presence of an ID will allow workers to crosscheck the name and address with poll records to determine where that person should be voting, if they turn up at the wrong precinct, so that they (the voter) has the best opportunity to cast a ballot.

TWM said...

At first I was very concerned about this but it seems that it's much ado about nothing.


http://pjmedia.com/jchristianadams/2013/06/17/left-loses-big-in-arizona-supreme-court-case/

And, in fact, a good result if, you know, you only want citizens votiing like any sane person would.

jimf said...

The ruling did not say that Az must use the federal form...Az could use a state form and require proof of citizenship.