Court Says Federal Law Preempts Arizona's Proof-of-Citizenship Requirement to Vote

The Supreme Court ruled today in Arizona v. InterTribal Council of Arizona, Inc. that the federal requirement under the National Voter Registration Act, NVRA, that the states "accept and use" an approved and uniform federal form for registering voters preempted Arizona's requirement that voters present evidence of citizenship at registration.  The ruling strikes Arizona's proof-of-citizenship requirement for users of the federal form, but also invites Arizona to try to get the federal Election Assistance Commission to provide state-specific instructions requiring proof of citizenship through an administrative process.  We posted on the case earlier here; our argument preview is here; our argument review is here.

The ruling is a strong statement of federal authority over the states when Congress acts pursuant to its Elections Clause power.  But the case doesn't change the basic federalism framework that the Court uses in its ordinary preemption cases (under the Supremacy Clause)--including its presumption against preemption in those cases--and it of course says nothing about the likely direction the Court will take in Shelby County, the pending decision on the challenge to Section 5 of the Voting Rights Act.  

Justice Scalia wrote for the Court, joined by Chief Justice Roberts and Justices Ginsburg, Breyer, Sotomayor, and Kagan.  Justice Kennedy, writing separately, concurred in part and concurred in the judgment.

The case arose out of Arizona's Proposition 200, a ballot initiative that required county recorders to reject any voter registration application not accompanied by a proof of citizenship.  The problem is that the NVRA requires states to "accept and use" a uniform federal form designed by the Election Assistance Commission; and the federal form only requires an applicant to attest, under penalty of perjury, that he or she meets the state voting requirements (including citizenship).  (The EAC rejected Arizona's request to include a state-specific instruction on the federal form that applicants must provide proof of citizenship.)

So the question in InterTribal was whether the NVRA requirement that states "accept and use" the federal form preempted Arizona's proof-of-citizenship requirement.  The Court ruled that it did.

Congress enacted the NVRA pursuant to its authority under the Elections Clause.  The Elections Clause, Article I, Sec. 4, cl. 1, provides:

The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the places of chusing Senators.

The Court recognized that the Clause was designed to give Congress certain authority over federal elections in order to ensure that states wouldn't undercut the federal government by refusing to provide for the election of representatives to Congress.  Thus, the preemptive power of the Clause, even if a "default," is sweeping:

In practice, the Clause functions as "a default provision; it invests the States with responsibility for the mechanics of congressional elections, but only so far as Congress declines to pre-empt state legislative choices." . . .  The power of Congress over the "Times, Places and Manner" of congressional elections "is paramount, and may be exercised at any time, and to any extent which it deems expedient; and so far as it is exercised, and no farther, the regulations effected supercede those of the State which are inconsistent therewith."

Op. at 5-6 (citations omitted).  More, the Court rejected Arizona's argument that there is a presumption against preemption in the Elections Clause context.  It said that when Congress regulates under the Elections Clause, "it necessarily displaces some element of a pre-existing legal regime erected by the States."  Op. at 11 (emphasis in original).  "Moreover, the federalism concerns underlying the presumption in the Supremacy Clause context are somewhat weaker here.  Unlike the States' 'historic police powers,' . . . the States' role in regulating congressional elections--while weighty and worthy of respect--has always existed subject to the express qualification that it 'terminates according to federal law.'"  Op. at 12 (citations omitted).  

Thus, the Court said that there was no reason not to give the congressional requirement that states "accept and use" the federal form its plain meaning.  And that meaning prohibits the states from adding a proof-of-citizenship requirement over and above what the federal form already requires.  

The Court noted that the "alternative means of enforcing its constitutional power to determine voting qualifications"--petitioning the EAC to alter the federal form, and challenging the EAC's rejection of a petition under the Administrative Procedures Act--"remains open to Arizona here."  Op. at 16.

Justice Kennedy concurred, but wrote separately to take issue with the Court's creation of "a hierarchy of federal powers so that some statutes pre-empting state law must be interpreted by different rules than others, all depending upon which power Congress has exercised."  He would have applied a presumption against preemption in this case--and any case involving federal legislation under the Elections Clause--but thought that that presumption was satisfied here.

Justice Thomas dissented, arguing that the Voter Qualifications Clause and the Seventeenth Amendment reserve the power to the states to determine qualifications of voters in federal elections.  The Voter Qualifications Clause, Article I, Sec. 2, cl 1., says that "the Electors in each State shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature" in elections for the federal House of Representatives.  The Seventeenth Amendment contains similar language for elections for the Senate.  Because both parties' interpretations of the "accept and use" language were plausible, according to Justice Thomas, these other provisions tilt the scale in favor of Arizona--and state determination of voter qualifications.

Finally, Justice Alito dissented, arguing that the NVRA language is ambiguous, but "their best reading is that the States need not treat the federal form as a complete voter registration application."  

SDS