[EL] more news 6/17/13

Mon Jun 17 14:04:15 PDT 2013

Perhaps the Court is unaware that the EAC has no quorum and has failed to function? Or that Congress shows no sign of confirming new Commissioners? What append if Arizona petitions the EAC as the Court states it should, but the EAC has no ability to respond because it is not currently functioning because of the current deadlock in Congress ...
Trevor

Sent from my iPad

On Jun 17, 2013, at 4:16 PM, "Marty Lederman" <lederman.marty at gmail.com> wrote:

> 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]
> 
> By Marty Lederman	 on Jun 17, 2013 at 3:02 pm
> 
> The Court, by a seven-to-two vote, 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, 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, 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.
> 
> 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 and by Gabriel Chin, Dan Tokaji and other election law scholars 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”
>> 
>> Posted on June 17, 2013 12:48 pm by Rick Hasen
>> WonkBlog reports.
>> 
>> <share_save_171_16.png>
>> Posted in Supreme Court, Voting Rights Act | Comments Off
>> “How the Voting Rights Act Hurts Democrats and Minorities”
>> 
>> Posted on June 17, 2013 12:44 pm by Rick Hasen
>> Steven Hill writes.
>> 
>> <share_save_171_16.png>
>> Posted in alternative voting systems, redistricting, Voting Rights Act | Comments Off
>> “The SEC and Dark Political Money”
>> 
>> Posted on June 17, 2013 12:42 pm by Rick Hasen
>> Ciara Torres-Spelliscy blogs.
>> 
>> <share_save_171_16.png>
>> Posted in campaign finance | Comments Off
>> Early Press and Commentary Roundup on Arizona Case      
>> 
>> Posted on June 17, 2013 12:41 pm by Rick Hasen
>> NYT
>> 
>> WaPo
>> 
>> AP
>> 
>> Lyle Denniston (SCOTUSBlog)
>> 
>> NBC News
>> 
>> Bloomberg
>> 
>> WSJ
>> 
>> Politico
>> 
>> The Nation
>> 
>> MSNBC
>> 
>> USA Today
>> 
>> Ballot Access News
>> 
>> Reuters
>> 
>> I spoke with KPCC’s Take Two about the decision and also to NPR and Slate (links to come).
>> 
>> Earlier I linked to my piece at The Daily Beast and Marty Lederman’s important post from SCOTUSBlog.
>> 
>> Below the fold I’ve added some press quotes I’ve received on the case via email.  MORE TO COME
>> 
>> Continue reading →
>> 
>> <share_save_171_16.png>
>> Posted in Elections Clause, Supreme Court | Comments Off
>> Lederman on the Qualifications Clause Issue in Today’s Supreme Court Election Case
>> 
>> Posted on June 17, 2013 12:14 pm by Rick Hasen
>> In my piece 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?
>> 
>> 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.
>> 
>> <share_save_171_16.png>
>> Posted in Elections Clause, Supreme Court | 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 92697-8000
>> 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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