[EL] more news 6/17/13

Mon Jun 17 14:07:56 PDT 2013

They are aware.  see fn 10

On Mon, Jun 17, 2013 at 5:04 PM, Trevor Potter <tpotter at capdale.com> wrote:

> 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]
> <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/>
>> .
>>  <share_save_171_16.png><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/>
>> .
>>  <share_save_171_16.png><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/>
>> .
>>  <share_save_171_16.png><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>
>>  <share_save_171_16.png><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.
>>  <share_save_171_16.png><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
>>
>>
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