[EL] Sleeper Case of the Year

[Rick Hasen]

I agree that there are a number of paths for the Court to reverse the 
9th Circuit without calling the general constitutional Elections Clause 
power into question.

On 3/17/13 11:19 AM, bzall at aol.com wrote:
> As I pointed out last week, I have a different view of this case, but 
> it fits this discussion as well.
>
> The Court need not strike a mighty blow in reversing. It doesn't even 
> have to address the Elections Clause at all.
>
> It need only look at the purposes of the NVRA. If there is, as the 9th 
> Circuit opined, really only one "goal" (note the singular) -- making 
> voter registration as easy as possible -- then the Court can uphold 
> the 9th Circuit opinion, and find that the federal agency's 
> interpretation is reasonable and thus enforceable. If, as many other 
> courts, including the Supremes, have held, there are four (or at least 
> two) goals (note the plural) enumerated in the statute -- 
> "increas[ing] the number of eligible citizens who register to vote," 
> "enhanc[ing] the participation of eligible citizens as voters," 
> "protect[ing] the integrity of the electoral process" and "ensur[ing] 
> that accurate and current voter registration rolls are maintained." 42 
> U.S.C. § 1973gg(b)(1), (2), (3), and (4) -- then the Court can simply 
> say that the 9th Circuit's opinion, and that of the federal agency 
> interpreting the statute, is not reasonable and cannot be sustained. 
> Statutory interpretation. Courts must not "rubberstamp ... 
> administrative decisions that they deem inconsistent with a statutory 
> mandate or that frustrate the congressional policy underlying a 
> statute." /Bureau of Alcohol, Tobacco and Firearms v. Federal Labor 
> Relations Authority/, 464 U.S. 89, 97 (1983), /quoting, //NLRB v. 
> Brown/,380 U.S. 278, 291-292(1965).
>
> No challenge to federalism, and no earthshaking interpretation of the 
> Elections Clause.
>
> It's a simple case: was the EAC correct in striking the balance where 
> Congress intended it to be? If so, sustain it. If not, strike the 9th 
> Circuit's opinion deferring to that interpretation.
>
> Barnaby Zall
> Of Counsel
> Weinberg, Jacobs & Tolani, LLP
> 10411 Motor City Drive, Suite 500
> Bethesda, MD 20817
> 301-231-6943 (direct dial)
> bzall at aol.com
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>
> -----Original Message-----
> From: Michael McDonald <mmcdon at gmu.edu>
> To: law-election <law-election at uci.edu>
> Sent: Sun, Mar 17, 2013 12:43 pm
> Subject: Re: [EL] Sleeper Case of the Year
>
> Perhaps a ruling could be narrowly tailored to the Arizona circumstances,
> but I think Rick is right that a ruling in favor of Arizona could have some
> deep and perhaps unintended consequences.
>
>
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-- 
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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