States' Rights

The Supreme Court Gives States New Weapons in the Voting Wars

What looks like a victory for the federal government may give states new powers to resist Washington’s control over elections, writes Richard L. Hasen.

Ross D. Franklin/AP

Supreme Court watchers have been waiting each day to see if the Supreme Court is going to strike down a key provision of the Voting Rights Act in a case called Shelby County v. Holder. The court did not issue that opinion Monday, but it did issue another important ruling in an Arizona voting case that could lead to new struggles between states and the federal government—and between Democrats and Republicans—over the rules for running our federal elections. While the opinion is a short-term victory for the federal government, it raises more questions than answers and ultimately could shift some power in elections back to the states.

In 2004, Arizona voters passed a law requiring people registering to vote in the state to provide documentary proof of citizenship. At issue in today’s case, Arizona v. Inter-Tribal Council, was a very technical question: must Arizona accept a simple federal form, required by the 1993 National Voter Registration Act (commonly known as “motor voter”), for voter registration even though the form does not require registrants to include documentary proof of citizenship?

The Supreme Court, on a 7–2 vote, held that Arizona must accept the federal form. Justice Antonin Scalia, writing for the court, held that Congress had the power to require Arizona to accept the form under the Constitution’s “Elections Clause,” which gives Congress the power to override state laws on the “times, places, and manner” of holding congressional elections. The court held that this was a very broad grant of federal power against the states.

At first glance, today’s case looks like a victory for the federal government, suggesting Congress might enact a great variety of laws on some of the most controversial issues in the voting wars: voter-identification laws, tough state voter-registration requirements, and proof-of-citizenship rules. With Democrats and Republicans dividing over these issues, and with hotly contested and bitter elections on the horizon, such laws could make a real difference in razor-thin races.

However, what the Supreme Court gave the federal government with one hand, it suggested could soon be taken away with the other. Justice Scalia drew a distinction between Congress’s broad power to set the manner of elections and its lack of power to set voter qualifications (such as residency requirements), which is an issue left to the states. The court’s view of the “qualifications” clause may give states new powers to resist federal government control over elections.

To begin with, Justice Scalia provided a road map for Arizona ultimately to win this very case when it goes back to the lower courts. The court wrote that Arizona should go back to the U.S. Election Assistance Commission to ask it to reconsider its request to include the citizenship requirement on the federal form. The problem is that thanks to the voting wars in Congress, the EAC has no commissioners: Senate Republicans won’t confirm them and Republicans in the House have voted to abolish the agency. Justice Scalia called it a “nice point” about what Arizona is to do in these circumstances, suggesting that a court could order the zombie EAC to include the Arizona information on the form.

More broadly, the opinion cast some doubt on a 1970 decision, Mitchell v. Oregon, holding that Congress could compel the states to permit 18-year-olds to vote in federal elections. Justice Scalia said Mitchell is of “minimal precedential value” and that the court would now view Congress as having no power to regulate voter qualifications in federal elections. As Marty Lederman points out, this seems to doom any efforts by Congress, for example, to bar states from disenfranchising felons.

It is not clear what other federal laws may now be challenged on grounds that they impermissibly regulate voter qualifications. Justice Scalia’s opinion was joined by the four liberals on the court (and in part by Justice Kennedy), and if these issues come back to the court, they are likely to be more skeptical than Justice Scalia of these qualifications arguments.

The pattern over the last decade has been that Republican states have passed new laws making it harder to register and vote, while Democratic states have passed new laws making it easier to register and vote. We can expect those Republican states to launch new lawsuits seeking greater power to impose restrictive voter requirements, and to strike down federal legislation that may get in their way. How those efforts get resolved is anyone’s guess.