The U.S. Supreme Court on Monday struck down a state-mandated requirement that prospective voters in Arizona provide proof of citizenship to be able to register to vote in national elections. But some experts are concerned that the court may have inserted a few “poison pills” in its opinion that would damage voting rights protections some day down the road.
The case before the court involved a federal law that allows people to register to vote by mail using a federal form that requires the registrant to swear, under penalty of perjury, that he or she is a citizen. Arizona went further than the federal law and added a requirement that the registrant provide a passport, birth certificate or other proof of citizenship in order to register.
But the Supreme Court, by a 7-2 vote, invalidated the state requirement as preempted by federal law.
Writing for the court majority, Justice Antonin Scalia said that the 1993 National Voter Registration Act, which requires states to “accept and use” the simple federal form, replaced more complicated state forms like Arizona’s. And the court said that if the state wanted to add requirements, it had to get permission from the federal Election Assistance Commission set up under the law. If the state was unable to prevail at the commission level, the court said, it could then appeal to the federal courts.
“No matter what procedural hurdles a State’s own form imposes, the Federal Form guarantees that a simple means of registering to vote in federal elections will be available,” Scalia wrote.
He added that if Arizona’s reasoning were to prevail, applicants would have to provide every additional piece of information the state requires on its state-specific form, and that would render the federal form purposeless.
“If that is so, the Federal Form ceases to perform any meaningful function, and would be a feeble means of increasing the number of eligible citizens who register to vote in elections for Federal office,” Scalia wrote.
The high court decision affirmed a ruling by a federal appeals court panel that included retired Justice Sandra Day O’Connor, who, since her retirement, still sits occasionally as a visiting judge on lower courts. On Monday she was in the Supreme Court chamber when the decision was announced.
Dissenting from the ruling were Justice Clarence Thomas and the man who replaced O’Connor on the high court, Justice Samuel Alito.
What The Decision Means
The lead plaintiff in challenging the Arizona law was a school janitor named Jesus Gonzalez, who registered to vote, or tried to, on the day he became a U.S. citizen. His application was twice rejected by state officials, though the documents he submitted were among those the state listed as acceptable proof of citizenship. The first time he tried to register, he followed instructions on the state form and supplied his naturalization number. But, as it turned out, the state had no way to verify that number with the Department of Homeland Security. On his next try, he entered his driver’s license number — another document the state said would be acceptable. But, as it turned out, because he had obtained his license when he was a legal resident but not yet a citizen, the license was flagged as issued to a “foreigner,” unbeknownst to him.
Those challenging the Arizona law contend that these kinds of registration hoops were exactly what Congress sought to prevent when it enacted the 1993 law. The court’s Monday opinion upheld that purpose, says Nina Perales, litigation vice president of the Mexican American Legal Defense and Educational Fund.
“What that means in real terms is that voters can register to vote using the federal postcard in Arizona, just as they can in every other state in the U.S.,” Perales said.
Voting rights expert Richard Hasen of the University of California, Irvine, is not so sure the case is as straightforward as it may appear.
“At first glance it looks like it’s a victory for the federal government because Arizona is told that it has to accept this federal form for voter registration,” Hasen said. “But buried in the opinion are all kinds of potential arguments that states could make down the line so that they will not have to follow federal mandates on elections.”
Arguments friendly to states’ rights.
A Sigh Of Relief
Still, most voting rights experts saw the court’s ruling as a strong affirmance of the federal government’s power to regulate how federal elections are conducted.
“What this decision is saying … is: You need to check with the federal government before you do those things and you do need to justify what you’re doing … before you just willy-nilly enact various different requirements” for voting, said Wayne State Law School Dean Jocelyn Benson.
Voting expert Richard Pildes of New York University Law School echoes that view. “What Justice Scalia has essentially said here for a substantial majority of the court is if you want modifications to these federal forms that have been required up till now, you have to go to this commission to get those modifications,” Pildes said.
Of course, the federal Election Assistance Commission is all but kaput these days, with Republicans in Congress blocking both personnel and funding. The commission has four members — two appointed by the Republican congressional leadership. Since 2009, the GOP nominees have withdrawn, while confirmation of the two Democratic nominees has been stalled.
Still, as NYU’s Pildes put it: “The court’s opinion does leave open some possibility that if all of this fails — if the commission is not active, if it doesn’t exist, if it can’t function — that the federal courts might ultimately have to decide some of these issues, but that’s a long, long way down the road, I would think.”
George Washington University law professor Spencer Overton notes in his blog for The Huffington Post that Scalia’s pronouncement that states have exclusive control over voter qualifications could actually hamper Congress’ power to protect voting rights. The opinion has the potential to bring into question a federal law that requires a state to register a U.S. citizen who moved from the state and now lives abroad, which would include many members of the military.
“Another thorny question left unresolved by the opinion is whether photo identification is itself a qualification the state can impose on federal elections (even in defiance of a federal statue to the contrary), or whether photo ID is simply evidence of a qualification like residency,” Overton wrote.
But, for today at least, civil rights groups were breathing a sigh of relief.
“Arizona’s law made it so difficult to run community-based voter drives, whether that was on a college campus or at a mall or at a church festival,” said MALDEF’s Perales, “because people were not physically carrying around documents proving their U.S. citizenship.”
Indeed, she says, that after the Arizona proof of citizenship law was enacted, voter registration dropped 44 percent in the state’s most populous county. And it wasn’t just Hispanics who were being turned down, Perales says. Eighty percent of those who were rejected were non-Hispanic whites.
In other actions Monday, the court:
- Ruled that juries, not judges, should have the final say on facts that can trigger mandatory minimum sentences. The 5-4 decision overturned the seven-year sentence of Allen Alleyne, convicted of robbery and firearm possession in Richmond, Va. Because the judge determined that Alleyne had “brandished” his weapon, his mandatory minimum sentence jumped from five to seven years. But the Supreme Court said that such factual judgments must be made by juries.
- Ruled that prosecutors can use a suspect’s silence against him if he refuses to answer questions before he invokes his constitutional right to remain silent. The court’s 5-4 decision came in the case of Genovevo Salinas, who was tried and convicted of murder. Before he was arrested or read his rights, Salinas answered some questions from police but refused to answer a question about a gun used in the crime, and his silence was used against him at trial.
- Ruled that the federal Driver’s Privacy Protection Act of 1994 does not allow lawyers to gather personal information about drivers from state databases when trying to find plaintiffs for potential lawsuits. Writing for the court, Justice Anthony Kennedy said that what lawyers have the statutory right to is information in ongoing cases in which they already represent someone. The law “has a limited scope to permit the use of highly restricted personal information when it serves an integral purpose in a particular legal proceeding.”
- Ruled that when pharmaceutical corporations strike deals with their generic drug competitors to keep cheaper forms of medicine off the market, these deals are sometimes illegal and can be challenged in court. The court voted 5-3 that these settlements, known as pay-for-delay deals, are not immunized from possible antitrust attack because patent-related settlement agreements can violate antitrust law. The decision came in a case involving a company then known as Solvay that reached a deal with a generic drugmaker allowing the launch of a cheaper version of Solvay’s male hormone drug AndroGel in August 2015. Solvay agreed to pay the generic drug maker an estimated $19 million to $20 million annually for the delay. The FTC called the deal anticompetitive and sued.