By Franita Tolson, 
Betty T. Ferguson Professor of Voting Rights at
Florida State University College of Law

In Arizona v. Inter Tribal Council of Arizona, the U.S. Supreme Court held the National Voter Registration Act (“NVRA”) preempted Arizona’s Proposition 200, which required documentary proof of U.S. citizenship to register to vote in federal elections.  The NVRA, which provides that all states must “accept and use” a uniform federal form to register individuals to vote, requires only that individuals attest to U.S. citizenship, but does not require documentary proof.

Prof. Franita Tolson

On the surface, the Court’s decision appears to vindicate federal authority by recognizing Congress’s broad power under the Elections Clause to regulate federal elections.  Pursuant to the Clause, states may choose the “Times, Places and Manner of holding Elections for Senators and Representatives,” but this authority is subject to Congress’s power to “at any time make or alter such Regulations.”  According to the Court, Congress’s authority under the Elections Clause is not subject to the usual presumption against preemption, where the Court assumes that Congress does not intend to preempt state authority in enacting legislation absent explicit language to the contrary.  Rather, Congress’s authority to “make or alter” state legislation pursuant to the Elections Clause is, by definition, an intent to preempt.  Thus, Arizona’s additional requirement for voter registration must give way to the NVRA’s less onerous registration regime for federal elections.

However, buried in this apparent victory for federal authority is language that should alarm voting rights groups while comforting the most ardent advocates of states’ rights.  Although the Court rejected Arizona’s argument that the federal form would not allow the state to collect the information it deemed necessary to assess citizenship status, the Court did so while agreeing with Arizona that the states, and not Congress, have plenary authority over prescribing voting qualifications.  According to the Court, the Elections Clause, which is limited to setting the “Times, Places, and Manner of holding elections,” confers no authority on Congress “to make or alter” voter qualifications.  Instead, these qualifications are linked to the state franchise by various provisions of the Constitution, including Article I, Section 2, Clause 1 (providing that electors for the House of Representatives “shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature”) and the Seventeenth Amendment (the same provision, but for the election of senators).  As commentators such as Rick Hasen, Marty Lederman, and Spencer Overton have observed, this narrow view of congressional authority appears to call into question several significant pieces of federal legislation, and it limits Congress’s ability to address state felon disenfranchisement laws.  In addition, it casts doubt on the validity of the Court’s 1970 decision in Oregon v. Mitchell, which held that Congress could lower the voting age to 18 in federal, but not state, elections.

These are not the only landmines lurking in the decision.  Indeed, the most troubling aspect of the majority opinion is that it appears to tell a compelling narrative about the scope of congressional authority over elections, a narrative based firmly in the constitutional text.  In reality, this narrative is woefully incomplete.  It is true, as the Court contends, that Congress’s authority over voter qualifications for state and federal elections is not plenary, but the Fourteenth and Fifteenth Amendments significantly expanded congressional authority over voter qualifications in both state and federal elections.  In particular, section 2 of the Fourteenth Amendment allows Congress to reduce a state’s representation in the House of Representatives for abridging the right to vote in state and federal elections for “any reason except for participation in rebellion, or other crime,” and section 1 of the Fifteenth Amendment prohibits states from abridging the right to vote on the basis of race.  Congress has significant authority to alter voter qualifications pursuant to their enforcement authority under these Amendments, both of which give Congress the “power to enforce, by appropriate legislation, the provisions of this article.”  In some circumstances, requiring additional documentary evidence of citizenship, contrary to federal requirements, could be characterized as an “abridgment” of the right to vote under section 2 of the Fourteenth Amendment and therefore subject to regulation under section 5 of that Amendment.  Similarly, adducing additional evidence of citizenship could have a disproportionate impact on certain minority groups, leading Congress to use its authority under section 2 of the Fifteenth Amendment to bar this additional requirement.

In Arizona v. Inter Tribal Council, the Court rightly recognizes that the area of voting and elections is unique, but completely misses that the story of the Elections Clause has to be told in light of the Reconstruction Amendments and expanded congressional authority over voter qualifications.                

Franita Tolson is the Betty T. Ferguson Professor of Voting Rights at the Florida State University College of Law.  Read her previous posts for Justice Watch

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