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

[Marty Lederman]

Agreed -- Dunn + enforcement powers might support 202(d).  But what about
202(e), and UOCAVA?

On Mon, Jun 17, 2013 at 2:20 PM, Justin Levitt <levittj at lls.edu> wrote:

>  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  90015213-736-7417justin.levitt at lls.edussrn.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> 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> 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 - 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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>>
>>
>
>
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