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

In Arizona v. Inter Tribal Council, the Supreme Court held that Arizona’s Proposition 200, which required proof of citizenship in order to register to vote in federal elections, was preempted by the National Voter Registration Act (“NVRA”) because the NVRA did not require such proof from voters. Shortly after the oral argument in the case, I noted that “the practical reality of compliance with the NVRA may very well mean that a state has to maintain two separate voter registration rolls” for state and federal elections. It appears that Arizona has taken this observation to heart, joining Kansas in setting up a voter registration system for state and local elections that is separate from its system governing federal elections. Under the dual system, voters who provide proof of citizenship will be able to vote in all elections, but those who do not will only be able to vote in federal elections. In adopting this approach, neither Kansas nor Arizona heeded my warning after Inter Tribal was decided about the significant risk of liability that comes with operating separate voter registration regimes.

By setting up dual voter registration systems, Arizona and Kansas may have miscomprehended the scope of congressional authority over elections, which, ironically, is the same mistake that the Court made in resolving the Inter Tribal case. The Court based its decision solely on the Elections Clause of Article I, Section 4, and ignored the other provisions of the Constitution that expand federal power (and by implication limit state authority) over elections. The Elections Clause gives states control over the “times, places and manner of holding Elections for senators and representatives” but subject to Congress’s power “to make or alter such regulations.” The Court rightly recognized that federal power is at its apogee when it seeks to regulate federal elections pursuant to its authority under the Clause, power that the Court described as both “comprehensive” and “paramount.”

Despite a promising start to the decision, the Court’s assessment of the Elections Clause in isolation led it to sharply limit federal authority in other areas, concluding that the power to prescribe voter qualifications is not part of the “times, places, and manner” of federal elections. For this reason, the Court determined that “[i]t would raise serious constitutional doubts if a federal statute precluded a State from obtaining the information necessary to enforce its voter qualifications.” Thus, the Inter Tribal decision, by viewing the power over voter qualifications as firmly within the province of the states, makes it unlikely that having parallel voter registration systems for state and federal elections is per se unconstitutional.

What Arizona, Kansas, and the Court have overlooked, however, is that having a dual system does not free the state from other statutory and constitutional constraints that both protect the right to vote and allow Congress to legislate with respect to voter qualifications. As I previously argued, the Inter Tribal decision disregarded that the Fourteenth and Fifteenth Amendments circumscribe the state’s authority over elections. Congress also has considerable authority under the enforcement provisions of these Amendments to regulate the qualifications of voters, authority that it has exercised in passing the Voting Rights Act of 1965.

Notably, Arizona and Kansas could face liability for their proof of citizenship requirements under section 2 of the Voting Rights Act, which forbids any “standard, practice, or procedure” that “results in a denial or abridgment of the right of any citizen of the United States to vote on account of race or color.” Unlike the Fourteenth and Fifteenth Amendments, section 2 does not require proof of intentional discrimination, just discriminatory effects, making it easier to prove a statutory violation. Moreover, unlike the preclearance regime of sections 4(b) and 5 of the Voting Rights Act, which suspends all voting related changes in certain covered jurisdictions until those changes are approved by the federal government, section 2 applies nationwide. Section 2 most commonly has been used to challenge state legislative and congressional redistricting plans, but the recent invalidation of part of the preclearance regime in Shelby County v. Holder, decided the same term as Inter Tribal, has provided an opening for a broader use of section 2 to combat other types of discriminatory voting regulations. In particular, the decision by these states to utilize a two-tier system of voter registration ignores that a proof of citizenship requirement for state and local elections could have a disparate impact on the voting rights of certain minority groups and run afoul of section 2’s protections. While the Inter Tribal case illustrates that Arizona and Kansas have the power to impose dual systems of registration, such decisions come with potential constitutional and statutory liability where the state’s voter registration regime operates in a way that undermines the right to vote.