Anyone entering the Supreme Court’s chamber Monday morning expecting constitutional drama over the right to vote had to come away quite disappointed. It took all of fifty minutes of a one-hour argument to get to any constitutional issue, most of the Justices wanted to focus on what “may only” means in a federal law, and one Justice pronounced the current federal-state voter registration regime “a crazy system.” In an era when very heated debates over curbing voters’ rights regularly occur in political circles, there was none of that as the Court heard Arizona v. The Inter Tribal Council of Arizona (12-71). At the center of the case is an Arizona law, approved by the state’s voters nine years ago, that requires a would-be voter seeking to register to show proof of U.S. citizenship as an additional requirement besides submitting a federal form which includes a question — enforced by possible perjury prosecution — asking whether or not one is a citizen.
Justice Antonin Scalia, who started out in the argument by criticizing Arizona for not filing the right kind of legal challenge, set the tone for the rest of the argument by trying to pry out of three lawyers what the difference is between “may only require” and “shall.” The federal “motor voter” law, seeking to streamline the process of signing up to vote, mandates a federal form and puts supposedly strict limits on states’ ability to add other requirements. It says that they may use some ways to verify a claim of voter eligibility, but “may require only” a short list of added information — and proof of citizenship is not one of those things.
Scalia’s evident purpose was to show sympathy for Arizona’s argument that its requirement of proof of citizenship is not incompatible with the federal law or the federal form, and thus can survive being “preempted.” Since Congress only specified that states “may require only” some information, and gave them explicit permission to find ways to verify eligibility, Arizona has argued that the two mandates can exist side by side. Scalia seemed clearly to agree, as did Justice Samuel A. Alito, Jr.
It was Alito who, as he was trying to sort out how two governments, one national and one state, can together manage who gets to vote, suggested that the existing arrangement ”seems like a very strange system” and then went further and said it “seems like a crazy system.” By that point in the argument, the Court was very far from displaying a keen interest in how the Constitution’s Elections Clause is supposed to work to make sense of voter registration.