The always awesome Lyle Denniston at SCOTUSBlog recaps Monday's Supreme Court decision in
Arizona v. Inter Tribal Council of Arizona, where in a 7-2 decision, the Supremes declared that federal election law does indeed trump state law when it comes to the mechanics of voting. But Lyle points out the larger issue in the decision: when it comes to
who is allowed to vote using those federal rules,
states get to determine eligibility.
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.
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