[EL] Arizona opinion and 30-day rules in Mitchell

[Justin Levitt]

Not sure whether Marty had already gotten an answer on this, yet, but 
section 202 of the VRA Amendments of 1970 (42 USC 1973aa-1 
<http://www.law.cornell.edu/uscode/text/42/1973aa-1>) still looks to me 
to be the law of the land.  It's not expressly premised not on the 
Elections Clause, or on Congressional power to set qualifications -- 
and, indeed, is phrased in terms of a citizen "who is otherwise 
qualified to vote."  Instead, it's premised on the unconstitutionality 
of durational residency requirements and the 14th Amendment enforcement 
power (and on the article IV privileges/immunities clause).  That may 
have been aggressive in 1970, but Dunn v. Blumstein later shored up that 
14th Amendment premise, at least for individuals newly moving _into_ a 
state.  I'm less sure about former residents.

Justin

-- 
Justin Levitt
Associate Professor of Law
Loyola Law School | Los Angeles
919 Albany St.
Los Angeles, CA  90015
213-736-7417
justin.levitt at lls.edu
ssrn.com/author=698321

On 6/17/2013 9:14 AM, Marty Lederman wrote:
> Can anyone tell me quickly whether federal law still contains the two 
> 30-day rules upheld in Mitchell (or something like them)?:
>
> requiring a State to allow a new resident to vote for President if she 
> had moved to the State more than 30 days before the election;
> and
> requiring a State to permit a /previous/ resident to vote for 
> President if he had moved /from /the state fewer than 30 days before a 
> federal election.
>
> Thanks in advance.
>
> On Mon, Jun 17, 2013 at 11:18 AM, Marty Lederman 
> <lederman.marty at gmail.com <mailto:lederman.marty at gmail.com>> wrote:
>
>     potentially huge implications for the Elections Clause, since the
>     Court -- without dissent! -- appears to finally resolve that
>     Congress can't set qualifications for voting in federal elections
>     (the issue that split the Justices in Oregon v. Mitchell).
>
>     Under that ruling, what might be at stake?
>
>     For starters, UOCAVA, which requires a state to register for
>     federal elections any person who resides outside the United States
>     and (but for such residence) would be qualified to vote in that
>     state if it was the last place in which the person was domiciled
>     before leaving the United States.
>
>     For another, this is a blow for any future efforts to enact a
>     federal statute preempting felon disenfranchisement laws.
>
>     What's more, when combined with other "recent" decisions (the
>     Boerne line), it would appear to call into question Congress's
>     authority to enact three statutes that the Court /upheld/ in
>     Oregon v. Mitchell:
>
>     i. requiring that 18-year-olds be permitted to vote in federal
>     elections;
>     ii.  requiring that a State had to allow a new resident to vote
>     for President if she had moved to the State more than 30 days
>     before the election;
>     and
>     iii. requiring that a State had to permit a /previous/ resident to
>     vote for President if he had moved /from /the state fewer than 30
>     days before a federal election.
>
>     (Of course, the Justices relied on an array of rationales in
>     Mitchell; but the residency holdings were supported by eight
>     Justices and the 18-year-old vote by five -- and the other
>     rationales in support of those holdings would not necessarily
>     stick today.)
>
>     Moreover, footnote 9 of the Scalia opinion at least leaves /open
>     /the question of whether Congress could prohibit Arizona from
>     doing the following:  (i) requiring proof of citizenship in order
>     to register; and then (ii) providing that "registration" is a
>     qualification for voting.
>
>     Federal government might have won the battle, but as for the war .
>     . .
>
>     On Mon, Jun 17, 2013 at 10:31 AM, Rick Hasen <rhasen at law.uci.edu
>     <mailto:rhasen at law.uci.edu>> wrote:
>
>         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 <tel:949.824.3072> - office
>         949.824.0495 <tel:949.824.0495> - fax
>         rhasen at law.uci.edu <mailto:rhasen at law.uci.edu>
>         http://law.uci.edu/faculty/page1_r_hasen.html
>         http://electionlawblog.org
>
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