[EL] Is the IIRIRA alien voter ban constitutional after Inter Tribal?

[Derek Muller]

As a part of the Illegal Immigration Reform and Immigrant Responsibility
Act of 1996, 18 U.S.C. 611(a) reads, "It shall be unlawful for any alien to
vote in any election held solely or in part for the purpose of electing a
candidate for the office of President, Vice President, Presidential
elector, Member of the Senate, Member of the House of Representatives,
Delegate from the District of Columbia, or Resident Commissioner," unless
they are voting for non-federal officials on a different ballot.

After *Inter Tribal*, might there be an unholy alliance to strike down this
provision? There has been some speculation that the Court's opinion about
the state's power over voter qualifications, and Congress's lack thereof,
would be limited to the context of the Elections Clause, and that other
sources of power (e.g., the Reconstruction Amendments) might offer an
alternative basis for Congress to regulate voter qualifications.

I suppose one could make the argument that Congress's broad power over
immigration would be the source of that power. But I do think it's telling
that Congress restricted itself to regulating only *federal* elections,
perhaps a concession that it believed it was acting within its more limited
power to regulate elections, not in the broader area of immigration.

And if that's the case, I wonder if the judicial "conservatives" (more
inclined to empower states to determine voter qualifications) and the
judicial "liberals" (more inclined to remove disabilities on the right to
vote) would team up in a future case to strike down this provision.

Or am I simply over-speculating in this area as we all await the opinion in
*Shelby County....

*
Derek*
*

Derek T. Muller
Associate Professor of Law
Pepperdine University School of Law
24255 Pacific Coast Hwy.
Malibu, CA 90263
+1 310-506-7058
SSRN Author Page: http://ssrn.com/author=464341
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