Did Justice Scalia Just Make It Easier To Register To Vote? Commentary
Did Justice Scalia Just Make It Easier To Register To Vote?
Edited by: Akira Tomlinson

JURIST Guest Columnist Jessica Levinson of Loyola Law School, Los Angeles, examines the implications of the US Supreme Court’s recent decision in Arizona v. Inter Tribal Council of Arizona


To answer the question in the title: not so much.

Monday came and went without a “blockbuster” decision by the US Supreme Court. However, the Court did hand down one important, and likely to be overlooked, decision regarding a hotly debated topic: proving of citizenship for purposes of registering to vote.

In Arizona v. Inter Tribal Council of Arizona [PDF], Justice Scalia, writing for a 7-2 majority of the Court, found that federal law preempted Arizona’s voter registration requirements. This sounds like a victory of voting rights activists, but let’s delve deeper.

In 1993 Congress passed the National Voter Registration Act (NVRA). The NRVA requires that when States register voters for federal elections they “accept and use” a federal form. With respect to proof of citizenship, the so-called “Federal Form” requires that would-be voters profess that they are citizens. This claim is made under penalty of perjury.

The NVRA provides that states must allow voters to register to vote for Federal candidates with a driver’s license application, in person, or by mail. The third method, registering to vote by mail, is at issue in this case. But Arizona law requires more. The state passed a law, via the initiative process, requiring that applicants must present documentary evidence of citizenship. If applicants do not, then state officials must reject the voter registration application.

Now let’s get to the Court’s rationale. The majority found that while the Elections Clause of the US Constitution gives States the responsibility to promulgate regulations providing the time, place and manner of federal candidate elections, it gives Congress the power to change or supersede those regulations. The majority concluded that the NVRA requirements that States “accept and use” the Federal Form preempts Arizona’s additional voter registration requirements, specifically the requirement that officials reject voter registration forms without documentary evidence of citizenship.

Put another way, the Court concluded that the NVRA prohibits states from requiring that voter registration applications provide information in addition to that which is required by the Federal Form.

But for those who are happy with the Court’s opinion thus far, wait a moment. Justice Scalia emphasized that Arizona can ask a commission, the Election Assistance Commission (EAC), to include these additional, state-specific requirements. Arizona would argue that obtaining documentary evidence proving citizenship was necessary to allow its election officials to determine whether applicants are eligible to vote. The EAC has the power to set the contents of the Federal Form in consultation with the States. The Federal Form already includes some state-specific requirements and instructions.

In fact, Arizona did ask the EAC for certain additional requirements to be part of the state-specific instructions for Arizona on the Federal Form. In 2005, the EAC deadlocked [PDF] 2-2 on that request, hence no action was taken. Arizona did not take the next step of challenging the EAC’s inaction by seeking review in federal court under the Administrative Procedure Act (APA).

Justice Scalia, writing for the majority, noted that Arizona could now again ask the EAC to add state-specific requirements on the Federal Form. If the EAC rejected the request or failed to act, Arizona could then seek APA review. If Arizona can prove that its additional voter registration requirements are necessary to satisfy the citizenship requirement, then the EAC has no option but to include Arizona’s requirement of documentary evidence of citizenship. Or as Justice Scalia put it, the EAC would then have a “nondiscretionary duty” to include that requirement in the Federal Form.

The majority acknowledged that the EAC currently has zero active commissioners. However, it noted that Arizona could seek a writ of mandamus to force the EAC to act. If a court lacked the ability to force the EAC to act because it lacks enough commissioners to constitute a quorum, then, the majority suggested, Arizona could bring another suit asserting a constitutional right to require documentary evidence of citizenship in addition to the requirements on the Federal Form.

So for those seeing Justice Scalia’s decision as a clear statement in favor of easing voter registration requirements, that is simply not the case. This case dealt with whether a federal statute preempts a state law. And the majority gave states a clear roadmap for establishing more stringent voter registration requirements.

Jessica Levinson is an associate clinical professor at Loyola Law School in Los Angeles, CA. She studies and publishes in the areas of election law and governance issues, including campaign finance, ethics, ballot initiatives, redistricting, term limits, and state budgets. She blogs at PoLawTics.

Suggested citation:Jessica Levinson, Did Justice Scalia Just Make It Easier To Register To Vote?, JURIST – Forum, June 21, 2013, http://jurist.org/forum/2013/06/jessica-levinson-scalia-voting.php

This article was prepared for publication by Alex Ferraro, the Section Head of JURIST’s academic commentary service. Please direct any questions or comments to him at academiccommentary@jurist.org


Opinions expressed in JURIST Commentary are the sole responsibility of the author and do not necessarily reflect the views of JURIST's editors, staff, donors or the University of Pittsburgh.