[EL] Arizona opinion

[BZall at aol.com]

It's tempting to just say they struck the statute as pre-empted, but that's 
 not the story, at least not the whole story. There are two critical 
elements  here that have implications for the Section Five case and beyond:
 
1) There were actually two Constitutional provisions at issue here: the  
Elections Clause and the Voter Qualifications Clause; and 
 
2) There were actually two NVRA sections at issue: the "accept and use"  
clause and the "eligibility" verification clause. 
 
What you really had was a textualist fight (not the academic definition,  
but a practical one). Scalia and six others said they would only look at the  
sections actually challenged, not the other sections also implicated. Alito 
 said they should also look at the others. In each case, the text itself 
was so  clear that there was no ambiguity (which is why Thomas's originalist 
dissent  didn't even grab Scalia; originalism doesn't go into interpretation 
using  Founder-era context if the text is unambiguous). 
 
Why would textualists not look at the other sections, particularly of the  
NVRA, which clearly seem to require consideration? Because Arizona didn't  
challenge the right way.
 
The statute says clearly that Arizona should have asked the EAC for  
permission to use something to help it verify citizenship. It did that, and the  
EAC refused the request. That was prior to the current set of voter i.d. 
cases,  upholding the right to require photo i.d. at the polls (and note that 
Arizona's  law requires voter i.d. at the polls and that requirement was 
upheld  throughout this case). Today, if Arizona made that request to the EAC, it 
would  likely be reviewed differently -- likely more thoroughly given the 
new  controversies over voter eligibility requirements -- but there's not 
much  question any more about photo i.d. after Crawford. So the EAC decision  
was wrong, and Scalia and the other Justices know that.
 
So what Arizona should have done was to challenge the EAC decision. Which . 
 . . it did not do. So Scalia took great pains to say "bring that 
challenge."  Alito responded: why bother, since we know what the outcome would be, 
given  Louisiana's approval for the same thing? 
 
But Scalia basically told Arizona: you can't, under the letter of the  
Elections Clause, defy the federal government's decision in this area, even if  
it was wrong. So that's why we got the decision and what it really means.
 
So, in that context, what other big case could be determined by looking at  
text? Section Five. 
 
Oh, and it's yet another demonstration that textualists can and do take  
"non-conservative" positions. They read the text and apply it if they can. 
 

 

Barnaby Zall 
Of Counsel 
Weinberg, Jacobs & Tolani,  LLP 
10411 Motor City Drive, Suite 500
Bethesda, MD 20817
301-231-6943  (direct dial) 
bzall at aol.com  
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In a message dated 6/17/2013 10:31:53 A.M. Eastern Daylight Time,  
rhasen at law.uci.edu writes:

http://electionlawblog.org/wp-content/uploads/arizona-intertribal.pdf

--  
Rick Hasen
Chancellor's Professor of Law and Political Science
UC  Irvine School of Law
401 E. Peltason Dr., Suite 1000
Irvine, CA  92697-8000
949.824.3072 - office
949.824.0495 -  fax
rhasen at law.uci.edu
http://law.uci.edu/faculty/page1_r_hasen.html
http://electionlawblog.org

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