Argument preview: Election integrity, or voter suppression?

At 10 a.m. Monday, the Supreme Court will hold one hour of oral argument on state power to require would-be voters to show proof of citizenship to register.  Arguing for state and local officials in Arizona v. The Inter Tribal Council of Arizona (docket 12-71), will be Arizona Attorney General Thomas C. Horne, with thirty minutes of time.  Arguing for the challengers will be Patricia A. Millett of the Washington office of the law firm of Akin Gump Strauss Hauer & Feld, with twenty minutes of time.  Representing the federal government as amicus will be Deputy U.S. Solicitor General Sri Srinivasan, with ten minutes of time.

Background

With memories still fresh about widespread complaints in last year’s presidential election about efforts to tighten the requirements for voting, especially affecting minority voters, the Supreme Court takes up the constitutional puzzle — existing since the Founding era — over who controls election procedures.  And in the background is the abiding partisan debate over whether such voter qualification rules are needed to combat election fraud, or are merely a cover for suppressing minority voting.

The Supreme Court may not settle that political argument, but its coming ruling in the case of Arizona v. The Inter Tribal Council of Arizona could have a major influence on how elections for the presidency and for Congress are conducted in the future.  And, of course, there could be a spillover effect for state and local elections, too.

This case goes back to the 2004 elections, when the voters of Arizona approved “Proposition 200” and, among other effects, set off a courthouse battle that is still going on without a final ruling on the constitutionality of that ballot measure.   Along the course of that legal battle, retired Justice Sandra Day O’Connor — sitting temporarily on a lower federal court — joined in a decision against the measure.  (That was mere coincidence, and may count for little if anything with the current Justices.)

“Proposition 200” has two key provisions, but only one of them is at issue before the Supreme Court.  That provision requires local election officials to refuse to register any would-be voter who does not have “satisfactory evidence of United States citizenship.”

That requirement can be met with a state driver’s license, birth certificate, or a U.S. passport, provided each shows U.S. citizenship, or naturalization papers, or identification of membership in an Indian tribe.  That is the provision nullified by the Ninth Circuit Court because it found a conflict with a federal voter registration law.  (The other provision, not at issue, requires voters to have ID with them when they show up to vote on election day.  The Circuit Court upheld that.)

The dispute has been before the Supreme Court once before, close to election day in 2006, when the Justices allowed Arizona to use the ballot measure provisions for the balloting that year (Purcell v. Gonzalez).

In an unsigned opinion at that time, the Court — without deciding the validity of “Proposition 200” — cited the competing interests at stake: “Confidence in the integrity of our electoral processes is essential to the functioning of our participatory democracy.  Voter fraud drives honest citizens out of the democratic process and breeds distrust of our government.  Voters who fear their legitimate votes will be outweighed by fraudulent ones will feel disenfranchised. . . .  Countering the state’s compelling interest in preventing voter fraud is the [challengers’] strong interest in exercising the fundamental political right to vote.”  It suggested the “possibility that qualified voters might be turned away from the polls” because of the ballot measure.

As the case has continued to unfold in the federal courts, and now back in the Supreme Court, it has involved two issues, both of which have constitutional dimensions.  First, what does the Constitution mean in giving the states the authority to decide “the time, place and manner” of holding elections for federal officials, but giving Congress back-up authority to “make or alter such regulations”?  And, second, does Arizona’s U.S. proof-of-citizenship requirement conflict with a 1993 federal law, the National Voter Registration Act (the “motor voter” law), and is therefore unconstitutional because the federal law must prevail when the two clash?

In order to answer both questions, the Court has to sort out the roles of the national and state levels of government, at least when elections involve the choice of national officers: the president and members of the House and Senate.

The 1993 federal law was passed in an effort to increase the number of eligible voters in federal elections, and to ensure that voter registration rolls are accurate and current.  It spells out three methods for registering voters for the federal polling.  Voters may sign up to vote when they apply for a driver’s license, they may apply by mail using a federal form, and they may register, using the federal form, at sites designated under state law or by state voter registration officials.   States must create a combined driver’s license (or non-driver ID) and voter registration form, and the law requires federal officials to draw up a federal form — a nationally uniform voter registration application to be used in getting registered by mail or at a registration office.

On the federal form, the would-be voter must declare that he or she meets voter eligibility requirements, including U.S. citizenship.

Under Arizona’s “Proposition 200,” however, the requirement of proof of U.S. citizenship to register is a separate mandate, not fulfilled by having the federal form.

After the Supreme Court allowed the citizenship proof requirement to be used in the 2006 elections, the challenges by two groups of organizations representing mainly minority voters but also some election reform advocates went ahead in lower federal courts.  That process led ultimately to a ruling by the en banc Ninth Circuit Court, finding a conflict between the separate Arizona proof requirement and the standard U.S. registration form.

The Circuit Court ruled that the Arizona provision had to yield, concluding that the two forms were not “harmonious.”  In doing so, the Court spelled out a formula for judging when state election laws for federal officers are preempted by federal law.  The Court declined to apply the analysis used under under the Constitution’s Supremacy Clause, which requires courts to maintain a delicate balance between federal and state interests, and thus must presume that a state law is not preempted, unless proven so.

But, the Circuit Court said, the Constitution’s Election Clause strikes a different balance, giving Congress the final word over election procedures for federal officers, without any presumption in favor of state powers.   Congress, it added, need not even spell out plainly an intention to override a state procedure.   Because of the U.S. proof-of-citizenship requirement imposed by Arizona, the Circuit Court said, Arizona had not followed the federal law’s requirement that it “accept and use” the federal form.

Petition for certiorari

The state of Arizona, its governor and other state officials, and local government and election officers, took the case on to the Supreme Court in July 2012.  (In June, the state failed to get the Justices to put the Circuit Court ruling on hold; Justice Samuel A. Alito, Jr., would have stayed that decision during the appeal.)  The petition raised a combined question that sought to test the new mode of preemption analysis specified by the lower court, and to test the conclusion that the Arizona requirement of proof of U.S. citizenship in order to register to vote failed that test.

On the first point, the petition argued that the Constitution’s Elections Clause, ever since it was adopted by the Founders, has given states explicit authority to write the rules for the conduct of elections of federal officers, and the states have continuously used that authority.  That is part of their traditional “police power” authority, the petition said, and when states use that authority, the traditional rule of presuming that their actions are not preempted applies.  The Circuit Court, it noted, cast that aside, and did so in direct conflict with rulings by the Supreme Court and by other appeals courts.

It is clear from Supreme Court precedent in election cases specifically, the state contended, that Congress can override state election laws only when it has said explicitly that it was doing so.  And yet, it added, the Circuit Court refused to require an explicit statement from Congress in the 1993 voter registration law that it was acting to displace state qualifications for voters.

If the Circuit Court has used the right analysis, the petition argued, “Proposition 200” surely would have survived it.  Only by using the new test for preemption, and taking a “hypertechnical” look at the federal law’s provision on use of the federal registration form, could the Circuit Court reach the result it did, Arizona asserted.

On the second point, the petition said that the Circuit Court was simply wrong in concluding that the state requirement of proof of citizenship and the federal registration form could not co-exist.  In fact, Arizona noted, the federal law explicitly tells states that they may develop their own voter registration forms, and specify the eligibility for voting.

The Circuit Court did not even attempt, the petition assserted, to meet the demanding test of whether a state law actually conflicted with a federal law.  The Circuit Court nullified the Arizona requirement for interfering with the federal form, but not for a direct conflict between the two, the state contended.

Without its proof of citizenship requirement, the petition concluded, Arizona is obliged to rely upon an “honor system” which trusts voters to have filled out the federal form truthtfully when it asks if they are citizens, without requiring any proof.

Since the first legal challenges were filed against “Proposition 200,” there have been two groups targeting the ballot measure.   One group is led by the Inter Tribal Council of Arizona, Inc., and includes other advocacy groups and an Indian tribe, the Hopi.  The other — the Jesus Gonzalez group — involves Arizona voters, a voter education project, Hispanic advocacy groups, and election reform organizations.

The Inter Tribal group, urging the Supreme Court to deny review, argued that the Circuit Court’s preemption analysis followed “a consistent line” of Supreme Court rulings giving states less deference in election law cases when Congress has acted.   In fact, that opposition brief contended, Supreme Court precedents stand for the proposition that, when federal elections are at issue, the Constitution actually delegates some federal power to the states rather than acknowledging that states have independent authority reserved to them.  State authority to set election rules for federal officers, it added, is not among the powers “reserved” to the states by the Tenth Amendment.

The Supremacy Clause, by contrast, proceeds upon a constitutional theory of dual sovereignty, federal and state, the brief contended.  But that is not appropriate under the Elections Clause, it argued.

On Arizona’s claim that the Circuit Court did not find an explicit conflict between federal and state law on voter registration, this brief in opposition said that was flatly wrong.

The Gonzalez group filed its own opposition brief, also urging the Court to deny review of Arizona’s appeal.  In reciting the background of the case, this brief made the point that more than 30,000 individuals in Arizona were turned aside when they sought to register after “Proposition 200” was enacted, and less than a third of them were able later to sign up.

That brief also argued that it would be premature for the Court to review the controversy, because there has been only the Ninth Circuit ruling, and, in addition, even if a different preemption analysis were used, the Arizona proof of citizenship rule would still have to be nullified.   On the merits, the Gonzalez brief paralleled the arguments made by the Inter Tribal filing.

Review of the case was supported by four states and three conservative legal advocacy organizations.

The Court granted review of the case early in the current Term, on October 15.

Briefs on the Merits

At the merits stage, the state and its governor and other state officers filed their brief separately from a brief filed by twenty-six county officers and election directors.   The state brief’s arguments on the two points raised in the petition — the proper preemption analysis and the validity of the citizenship proof requirement — largely track the points previously made, with some elaboration to demonstrate that voter fraud is a significant problem in Arizona.

The most significant aspect of the state brief, however, is a sweeping new argument about the core meaning of the Constitution when it says that states may set the “qualifications” for voting in federal elections.   This point was saved for the final ten pages of a fifty-six-page brief.  It urged the Court to find that the Arizona requirement is not preempted “to avoid raising a serious doubt” about whether the 1993 federal law is unconstitutional.

The federal law, the brief contended, is suspect constitutionally, because Article I’s language about setting voter qualifications (separate from the Elections Clause) “reserves to the states the exclusive power to determine the qualifications for voters in federal elections.”  Voter qualifications, it went on, are not subject to any veto power in Congress.

Citing James Madison in Federalist 60, the state contended that determining voter qualifications “forms no part of the power conferred upon the national government.”   All that Congress may second-guess, according to this theory, the state said, are the times, places, and manner of holding elections, not who may vote in them.   The Elections Clause is only concerned with procedures of elections, but not who may vote, which the state said is controlled by the “qualifications” provisions elsewhere in Article I.

In conclusion, the state argued that apart from the limitations on election procedures, there is also no other part of the Constitution that allows Congress to second-guess the voter qualifications that states decide to impose.  It contended that the Fourteenth Amendment’s grant of power to Congress to enforce that Amendment does not give the national lawmakers the authority to bar Arizona from requiring proof of U.S. citizenship as a condition for voter registration.

The twenty-six Arizona county recorders and county election officials, in their separate merits brief, argued primarily a series of policy points about administering elections.  It is their duty, the filing noted, to have procedures for voter registration that are “clear and easily administered.”   Adding a U.S. citizenship proof requirement, the brief argued, aids in simplifying the conduct of elections because it helps make the registration process uniform, resulting in “more consistent treatment of each voter” and an easier mode of verification of first-tine voters’ eligibility.

That brief makes no argument about constitutional doubts over the federal law.

The Inter Tribal Council’s merits brief essentially makes three points: the Elections Clause gives the Congress “plenary authority” to veto state laws on the election of federal officers, Arizona has vowed to reject any federal registration form that is not filed along with the state proof of citizenship form and that is a sufficient conflict to settle the invalidity of the state provision, and there is no constitutional problem with the federal law because it will in no way alter state-imposed voting qualifications.

On that third point, that brief argued that the citizenship proof requirement imposed by Arizona is not a qualification at all.  U.S. citizenship itself is a qualification, it noted, but that was not changed by “Proposition 200.”  Rather, the brief said, the requirement of proof is an addition to the manner of registration, and that is the field of election procedure where Congress can use its veto power over a conflicting state measure.

The merits brief of the Gonzalez group suggested that Arizona was attempting to make this controversy into a “David and Goliath battle between a state and an overbearing federal government,” when the dispute actually is between U.S. citizens who are eligible to vote under a federal registration regime and a state that wants to add requirements that “exist entirely outside and at odds with the federal scheme.”

That brief has an expanded argument defending the notion that the federal law’s requirement that states “accept and use” the federal registration form is being thwarted because “Proposition 200” simply mandates that no state registration will be allowed based upon the federal form alone.

The Gonzalez group also took on the state’s suggestion of potential unconstitutionality, saying that it simply cannot be argued that Congress exceeded its authority under the Elections Clause in seeking to make voter registration a uniform procedure across the nation.  “The power to regulate its own federal eledtions has always resided with the federal government,” that filing contended.   The Clause grants only “conditional authority” to the states, it added.

Like the Inter Tribal group brief, the Gonzalez filing contended that the federal law has no impact on voter qualifications in Arizona, so the suggestion that there is a federal intrusion upon those qualifications is misplaced.

The federal government has joined in the case to defend the national interest in seeing that the federal registration form is used by the states to help promote the uniformity that Congress was seeking.   It also noted that the U.S. Attorney General was given authority to enforce the 1993 federal law embodying the uniform scheme.

Arizona’s attempt to belittle the federal form as “necessary but not sufficient,” the federal brief argued, “would thwart the central purpose of the statute to streamline the process of registering to vote for federal office.”  If each state could tack on supplemental requirements for registration, the U.S. contended, the federal form would be turned into an additional hurdle beyond those state requirements.  That was not what Congress had in mind in seeking to “streamline registration,” it added.

Contrary to Arizona’s argument that Congress has invited the states to seek their own ways to implement their own, separate registration rules, the government asserted that the federal law does nothing of the kind, since it gives federal rather than state officials the power to determine what information to require of voters.

On the scope of the Elections Clause, the federal government’s filing argued that the states simply had no power to regulate federal elections before Congress delegated to them a partial role.   That background, it said, justifies the Circuit Court’s refusal to apply Supremacy Clause-style preemption analysis with its presumption in favor of state prerogatives.

To Arizona’s argument that the Court must validate the Arizona requirement in order to stay away from addressing the constitutionality of the federal registration law, the government lawyers said that the Constitution’s qualifications language only deals with who may vote, not the method by which they register to vote — the latter being in Congress’s full control.  If Arizona’s qualificstions argument prevsiled, and the states gained the sole right to decide how voters are to sign up, Congress could not have mandated a federal registration form at all, the brief said.

At the merits stage, Arizona picked up additional amici support, with six states now on its side, along with one of the country’s most energetic promoters of states’ rights versus federal powers — Kansas Secretary of State Kris W. Kobach, two members of the U.S. House of Representatives whose committees deal with election law, Arizona’s chief sponsor of “Proposition 200” (former State State Senator Russell Pearce), and the same conservative advocacy groups with it at the petition stage.

Entering the case as amici on the side of the challengers to the Arizona requirement are seven present and two former members of the House, election reform groups, constitutional law professors, teachers, the League of Women Voters, a group of present and former local election officials, and a number of civil rights and minority rights advocacy organizations.

Analysis

Arizona has mounted an escalating constitutional attack on the effort to scuttle its separate citizenship proof requirement for voter registration, and part of that may have been an attempt to make it more difficult for the Court to focus solely on the meaning of the 1993 federal law, and how states can go about complying with the duty to “accept and use” the uniform federal form.

Given that the Court usually tries to stay away from constitutonal issues, if it can decide a case merely on the basis of a statute’s wording, the Justices might have been tempted to do just that.  On the statute’s meaning, Arizona has sought to define the “accept and use” mandate as if its proof of citizenship requirement is no impediment to that mandate.  That effort, though, seemed a bit half-hearted, as the state’s filings seemed definitely designed to put the Constitution at the center of this dispute.

It would have been difficult in any event for the Court to stay entirely away from constitutional questions, because the Ninth Circuit’s interpretation of the Elections Clause as mandating a special kind of preemption analysis puts the scope of that Clause directly at issue.  It was no surprise, then, that Arizona came back with an added central point in its merits brief, hoping to gain a seemingly unprecedented power for states to control all of the qualifications for voting in federal elections and, in the process, to deny Congress any veto power over those qualifications.  Why not go for more constitutionally, rather than less?

The Circuit Court ruling on the preemption point may be quite vulnerable.  Just as Arizona may have pushed too far in suggesting that the states are the sole judges constitutionally of voter qualifications, even in federal elections, the Circuit Court may have been a little too imaginative in suggesting that very little was left to the states in the Elections Clause.   For a Court that sometimes deems itself obliged to protect federalism principles, the Circuit Court’s approach may look like a signiicant threat to those principles.

In short, the case, as fully briefed and ready for argument, has taken on the aura of a very large constitutional dispute, with portents that might well be historic.

If there is a surprise in the case’s preparation, it is that so little is made of the dispute over whether Arizona’s citizenship requirement is just another form of voter suppression under the claimed label of election integrity.