[EL] more news 6/17/13

Mon Jun 17 13:14:31 PDT 2013

I've updated the post to reflect a more optimistic strand of the decision,
with possible implications for Shelby County:

 Pyrrhic victory for federal government in Arizona voter registration case?
[UPDATED with reference to Shelby County]
<http://www.scotusblog.com/2013/06/pyrrhic-victory-for-federal-government-in-arizona-voter-registration-case/>

By Marty Lederman <http://www.scotusblog.com/author/marty-lederman/> on Jun
17, 2013 at 3:02 pm

The Court, by a seven-to-two
vote<http://www.supremecourt.gov/opinions/12pdf/12-71_7l48.pdf>,
today held that federal law preempts — that is to say, renders invalid — an
Arizona law requiring voter registration officials to reject a voter’s
application for registration if it is not accompanied by evidence of U.S.
citizenship above and beyond the attestation of citizenship the applicant
has made on the federal “Motor Voter” form.

Lyle is almost certainly
correct<http://www.scotusblog.com/2013/06/opinion-recap-one-hand-giveth/>,
however, that what appears at first to be a significant victory for the
federal government might in fact be something much less than that — indeed,
might establish important restrictions on Congress’s authority to determine
eligibility for voting in federal elections, in a way that implicates
current and potential future federal legislation.

For starters, and as Lyle
explains<http://www.scotusblog.com/2013/06/opinion-recap-one-hand-giveth/>,
the Court suggests at the end of its opinion that Arizona should go back to
the federal Election Assistance Commission (EAC), where it will have an
opportunity to establish that the “mere oath” on the federal Motor Voter
form “will not suffice to effectuate Arizona’s requirement” that voters in
federal elections be U.S. citizens.  If the EAC makes such a showing, the
Court suggests, the EAC will have a “nondiscretionary duty” under the
federal law “to include Arizona’s concrete evidence requirement on the
Federal Form.”  (The same might be true, the Court adds, if Arizona
demonstrates that it would be arbitrary to deny Arizona’s request because
the EAC “has accepted a similar instruction requested by Louisiana.”)  And
if the EAC rejects Arizona’s application, the state will have an
opportunity to establish the same thing in a reviewing court, under the
Administrative Procedure Act.  Notably, the Court does not resolve what
sort of showing Arizona would have to make to demonstrate that the “mere
oath” does not “suffice,” other than to say that Arizona must be able to
obtain “the information necessary to enforce its voter qualifications.”

(One other potentially important thing:  Footnote 9 of the Court’s opinion
leaves open the question of whether Arizona could circumvent the Court’s
ruling by re-characterizing its law in the following way:  (i) to require
proof of citizenship beyond the Federal Form attestation in order to *
register* to vote; and then (ii) providing that such “registration” is a
qualification for voting in federal elections in Arizona.)

More significantly, the Court suggests that if federal law (the Motor Voter
law or a subsequent, clarifying statute enacted by Congress) *did* prevent
Arizona from obtaining the “necessary” information about citizenship as a
condition of voter qualification, it would raise a serious
*constitutional*question concerning whether Congress can impose such
limits, even though
the qualification in question is for voting in federal, not state,
elections.

Therefore, the Court explains, if the EAC is precluded from acting on
Arizona’s submission by virtue of its current lack of a quorum (there are
no commissioners currently in office), then Arizona could seek a writ of
mandamus from a federal court to compel the EAC to act; and even if the
federal court lacks power to require an agency without a quorum to take
such action, “Arizona might then be in a position to assert a
constitutional right to demand concrete evidence of citizenship apart from
the Federal Form.”

Where does this possible “constitutional right” come from?  The answer to
that question is perhaps the most important development in the case,
because it has implications that might go well beyond the citizenship ID
issue immediately before the Court:

The Court categorically holds — without dissent — that the Elections Clause
of Article I of the Constitution (Art. I, § 4, cl. 1) “empowers Congress to
regulate *how *federal elections are held, but not *who *may vote in them”
(emphasis in original).

This passing, unanimous holding resolves a long-unresolved question about
Congress’s power to determine who may vote in federal elections, and would
appear to implicitly overrule at least one of the Court’s holdings in the
landmark 1970 case of *Oregon v.
Mitchell*<http://www.bloomberglaw.com/public/document/Oregon_v_Mitchell_400_US_112_91_S_Ct_260_27_L_Ed_2d_272_1970_Cour/2>
.

Under this ruling, what sorts of federal laws might now be called into
question?

For starters, there’s the Uniformed and Overseas Citizens Absentee Voting
Act (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.  *See *42 U.S.C.
1973ff-1, 1973ff-6(5).

The holding would also appear to preclude any future efforts to enact a
federal statute restricting state felon disenfranchisement laws.

What’s more, particularly when combined with other, more recent decisions
(the *City of Boerne *line of cases, in particular), it would appear to
call into question Congress’s authority to enact three of the statutes the
Court *upheld* in *Oregon v. Mitchell* itself:

i. requiring that eighteen-year-olds be permitted to vote in federal
elections (upheld by five Justices);

ii.  requiring a state to allow a new resident to vote for President if she
had moved to the state more than thirty days before the election (supported
by eight Justices, but not by Justice Harlan, whose view of the Elections
Clause the Court expressly adopted today);

and, especially,

iii. Section 202(e) of the Act reviewed in *Mitchell*, still a part of
federal law today, *see *42 U.S.C. 1973aa-1(e), which provides that a state
must permit a *previous* resident to vote for President if he has moved *from
*the state fewer than thirty days before a federal election (also supported
by eight Justices).

To be sure, the Justices constituting the majorities in *Mitchell *relied
on an array of rationales; but the justifications other than the Elections
Clause in support of the first two holdings would not necessarily stick
today, under the Court’s modern doctrine regarding Congress’s
Reconstruction Amendment enforcement powers.  And it’s not obvious what the
justification would be *other *than the Elections Clause for section
1973aa-1(e), the provision requiring states to allow their recently
departed residents to vote.  Similarly, other than the Elections Clause,
under what constitutional authority does Congress have the power to require
states to allow former residents — including uniformed military personnel
and their families — to vote if they have moved, or been stationed,
overseas, as it does in the existing UOCAVA?

On the other hand, as Rick Pildes has encouraged me to stress, there is
certainly rhetoric in the majority opinion that reads the Elections Clause
very broadly–indeed, in some respects, it is the high-water mark of the
Court’s case law respecting that clause, hardly limited to the narrowest
reading of the clause’s terms:  “The Clause’s substantive scope is broad,”
writes Justice Scalia.  “’Times, Places, and Manner’,” he explains,  are
‘comprehensive words,’ which ‘embrace authority to provide a complete code
for congressional elections,’ *including*, as relevant here and as
petitioners do not contest, *regulations relating to ‘registration*.’”

Notably, such a broad reading might have significant resonance in the *
Shelby** County *Voting Rights Act case that the Court will likely decide
in the next ten days.  As amicus briefs filed in that case by Pam
Karlan<http://www.americanbar.org/content/dam/aba/publications/supreme_court_preview/briefs-v2/12-96_resp_amcu_reps.authcheckdam.pdf>and
by Gabriel
Chin, Dan Tokaji and other election law
scholars<http://www.americanbar.org/content/dam/aba/publications/supreme_court_preview/briefs-v2/12-96_resp_amcu_gcae-etal.authcheckdam.pdf>argue,
whatever the Court might decide with respect to application of
section 5 of the Voting Rights Act in *state* elections, the Elections
Clause would appear to provide Congress with the authority to enact section
5 to govern *federal *elections — especially if, as the Court held today,
that clause’s “substantive scope is broad,” and “Times, Places, and Manner”
are seen as “comprehensive words, which embrace authority to provide a
complete code for congressional elections” (with the exception of voter
qualifications).

Only time will tell what the full implications might be of the Court’s
Elections Clause holdings today.

On Mon, Jun 17, 2013 at 3:50 PM, Rick Hasen <rhasen at law.uci.edu> wrote:

>   “The Supreme Court’s decision on Arizona won’t put an end to voting
> wars” <http://electionlawblog.org/?p=51710>
> Posted on June 17, 2013 12:48 pm <http://electionlawblog.org/?p=51710> by Rick
> Hasen <http://electionlawblog.org/?author=3>
>
> WonkBlog reports<http://www.washingtonpost.com/blogs/wonkblog/wp/2013/06/17/the-supreme-courts-decision-on-arizona-wont-put-an-end-to-voting-wars/>
> .
>  [image: Share]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D51710&title=%E2%80%9CThe%20Supreme%20Court%E2%80%99s%20decision%20on%20Arizona%20won%E2%80%99t%20put%20an%20end%20to%20voting%20wars%E2%80%9D&description=>
>   Posted in Supreme Court <http://electionlawblog.org/?cat=29>, Voting
> Rights Act <http://electionlawblog.org/?cat=15> | Comments Off
>   “How the Voting Rights Act Hurts Democrats and Minorities”<http://electionlawblog.org/?p=51707>
> Posted on June 17, 2013 12:44 pm <http://electionlawblog.org/?p=51707> by Rick
> Hasen <http://electionlawblog.org/?author=3>
>
> Steven Hill writes<http://www.theatlantic.com/politics/archive/2013/06/how-the-voting-rights-act-hurts-democrats-and-minorities/276893/>
> .
>  [image: Share]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D51707&title=%E2%80%9CHow%20the%20Voting%20Rights%20Act%20Hurts%20Democrats%20and%20Minorities%E2%80%9D&description=>
>   Posted in alternative voting systems<http://electionlawblog.org/?cat=63>,
> redistricting <http://electionlawblog.org/?cat=6>, Voting Rights Act<http://electionlawblog.org/?cat=15>
> | Comments Off
>   “The SEC and Dark Political Money” <http://electionlawblog.org/?p=51704>
> Posted on June 17, 2013 12:42 pm <http://electionlawblog.org/?p=51704> by Rick
> Hasen <http://electionlawblog.org/?author=3>
>
> Ciara Torres-Spelliscy blogs<http://sunlightfoundation.com/blog/2013/06/17/the-sec-and-dark-political-money/>
> .
>  [image: Share]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D51704&title=%E2%80%9CThe%20SEC%20and%20Dark%20Political%20Money%E2%80%9D&description=>
>   Posted in campaign finance <http://electionlawblog.org/?cat=10> | Comments
> Off
>   Early Press and Commentary Roundup on Arizona Case<http://electionlawblog.org/?p=51700>
> Posted on June 17, 2013 12:41 pm <http://electionlawblog.org/?p=51700> by Rick
> Hasen <http://electionlawblog.org/?author=3>
>
> NYT<http://www.nytimes.com/2013/06/18/us/justices-reject-arizona-voting-law-requiring-proof-of-citizenship.html?hp>
>
> WaPo<http://www.washingtonpost.com/politics/supreme-court-says-states-may-not-add-citizenship-proof-for-voting/2013/06/17/734a1aca-d760-11e2-a9f2-42ee3912ae0e_story.html>
>
> AP<http://bigstory.ap.org/article/court-ariz-citizenship-proof-law-illegal>
>
> Lyle Denniston<http://www.scotusblog.com/2013/06/opinion-recap-one-hand-giveth/>(SCOTUSBlog)
>
> NBC News<http://usnews.nbcnews.com/_news/2013/06/17/19003391-supreme-court-strikes-down-arizona-law-requiring-proof-of-citizenship-to-vote>
>
> Bloomberg<http://www.bloomberg.com/news/2013-06-17/voter-proof-of-citizenship-law-voided-by-u-s-supreme-court.html>
>
> WSJ<http://online.wsj.com/article/SB10001424127887324520904578551302940183818.html>
>
> Politico<http://www.politico.com/story/2013/06/scotus-rejects-arizona-voter-registration-rule-92899.html?hp=l1>
>
> The Nation<http://www.thenation.com/blog/174829/supreme-court-strikes-down-arizona-voter-suppression-law#axzz2WVFVlLwD>
>
> MSNBC<http://tv.msnbc.com/2013/06/17/controversial-arizona-voting-law-struck-down-by-supreme-court/>
>
> USA Today<http://www.usatoday.com/story/news/politics/2013/06/17/supreme-court-arizona-voting-citizenship-states-congress-registration/2166965/>
>
> Ballot Access News<http://www.ballot-access.org/u-s-supreme-court-decision-in-arizona-v-inter-tribal-council-of-arizona-strengthens-elections-clause-of-u-s-constitution/>
>
> Reuters<http://www.reuters.com/article/2013/06/17/us-usa-court-voters-idUSBRE95G0K720130617>
>
> I spoke with KPCC’s Take Two<http://www.scpr.org/programs/take-two/2013/06/17/32277/scotus-strikes-down-arizona-s-voter-id-law/>about the decision and also to NPR and Slate (links to come).
>
> Earlier I linked to my piece at The Daily Beast<http://www.thedailybeast.com/articles/2013/06/17/the-supreme-court-gives-states-new-weapons-in-the-voting-wars.html>and Marty
> Lederman’s important post
> <http://www.scotusblog.com/2013/06/pyrrhic-victory-for-federal-government-in-arizona-voter-registration-case/>from
> SCOTUSBlog.
>
> Below the fold I’ve added some press quotes I’ve received on the case via
> email.  MORE TO COME
>
> Continue reading → <http://electionlawblog.org/?p=51700#more-51700>
>  [image: Share]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D51700&title=Early%20Press%20and%20Commentary%20Roundup%20on%20Arizona%20Case&description=>
>   Posted in Elections Clause <http://electionlawblog.org/?cat=70>, Supreme
> Court <http://electionlawblog.org/?cat=29> | Comments Off
>   Lederman on the Qualifications Clause Issue in Today’s Supreme Court
> Election Case <http://electionlawblog.org/?p=51697>
> Posted on June 17, 2013 12:14 pm <http://electionlawblog.org/?p=51697> by Rick
> Hasen <http://electionlawblog.org/?author=3>
>
> In my piece <http://thebea.st/12QTSz0>today on Arizona v. Inter-Tribal
> Council, I express concern about what the Court says about congressional
> power to set the manner of elections but lack of congressional power to
> alter state *qualifications *of voters.  I referenced an important post
> by Marty Lederman on the topic, who expresses even greater concern than I
> have about the issue.  You can now read (and must read) Marty’s post at
> SCOTUSBlog, Pyrrhic victory for federal government in Arizona voter
> registration case?
> <http://www.scotusblog.com/2013/06/pyrrhic-victory-for-federal-government-in-arizona-voter-registration-case/>
>
> I will have to give much more thought to Marty’s issues — it usually takes
> more than a few hours to fully digest Supreme Court opinions. But I expect
> that the issues Marty raises will be the subject of major debate among
> election law scholars and courts in the next few years.
>  [image: Share]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D51697&title=Lederman%20on%20the%20Qualifications%20Clause%20Issue%20in%20Today%E2%80%99s%20Supreme%20Court%20Election%20Case&description=>
>   Posted in Elections Clause <http://electionlawblog.org/?cat=70>, Supreme
> Court <http://electionlawblog.org/?cat=29> | Comments Off
>
> --
> Rick Hasen
> Chancellor's Professor of Law and Political Science
> UC Irvine School of Law
> 401 E. Peltason Dr., Suite 1000
> Irvine, CA 92697-8000949.824.3072 - office949.824.0495 - faxrhasen at law.uci.eduhttp://law.uci.edu/faculty/page1_r_hasen.htmlhttp://electionlawblog.org
>
>
> _______________________________________________
> Law-election mailing list
> Law-election at department-lists.uci.edu
> http://department-lists.uci.edu/mailman/listinfo/law-election
>
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