There is a customary rule that courts are to operate on the basic premise that, when Congress and the states act in the same field, state laws won’t be displaced unless Congress explicitly says they must yield. That “presumption against preemption,” in technical terms, does not even apply to the joint enterprise of Congress and the states in regulating elections, according to the new decision. Thus, in this one field, states do not get the benefit of the doubt when they pass election laws that appear to be, or are, different from what Congress has mandated.
If a reader of the Scalia opinion stopped at the top of page 13, the impression would be very clear that Congress had won hands down in the field of regulating federal elections. But from that point on, there is abundant encouragement for what is essentially a states’ rights argument: that is, that the states have very wide authority to define who gets to vote, in both state and federal elections.
On the particular point at issue in this case — Arizona’s requirement of proof of citizenship before one may register to vote or actually vote — the Scalia opinion said that a state was free to ask the federal government for permission to add that requirement. And, Scalia said, if that doesn’t work — either because the federal agency that would deal with such a request is either not functioning or says no — then a state would be free to go to court and make an argument that it has a constitutional right to insist on proof of citizenship as an absolute qualification for voting, in all elections.
The opinion seemed to leave little doubt that, if Arizona or another state went to court to try to establish such a constitutional power, it might well get a very sympathetic hearing, because that part of the Scalia opinion laid a very heavy stress on the power of states under the Constitution to decide who gets to vote. Indeed, that part of the opinion said that the Constitution simply does not give Congress the power to decide who can qualify, but only how federal elections are run procedurally.
In other words, Wario Scalia has just opened the door to serious court challenges to federal election laws. It's a decision that means the only reason Arizona can't force proof of citizenship in order to vote is because that has to be a national requirement, and that Arizona really, really should sue the federal government in order to make it so.
It also means that states are free to disqualify people from voting for various reasons, mostly through voter ID requirements.
If all of this gives you a headache, it's supposed to. It's an argument that when it comes to federal elections, the how and when is done by the feds, but the question of who is up to the states and the states alone, and that Congress has no power to interfere in who a state allows to vote.
That bodes very, very badly for the days and weeks ahead in the other big voting rights case, Shelby County v. Holder, that will determine the power Congress has in the Voting Rights Act. I'm more convinced than ever that Section 5 of the VRA will be toast, and that GOP-controlled states will do everything they can to disenfranchise millions in future elections.