Today a federal court decided Kobach v. United States Election Assistance Commission.The upshot of this opinion, if it stands on appeal, is that states with Republican legislatures and/or Republican chief election officials are likely to require documentary proof of citizenship for voting, making it harder for Democrats to pursue a relatively simple method of voter registration. The case is complicated and has a complex history, but here are the basics. In 1993, Congress passed the National Voter Registration Act (or “motor voter”), which makes a number of changes at issue in federal elections. Among other things the law requires that states must accept from voters voter registrations submitted on a federal form for voting in congressional elections. Preparing this form used to be the responsibility of the Federal Election Commission, but when Congress created the U.S. Election Assistance Commission as part of its Help America Vote Act after the 2000 contested presidential election, it shifted responsibility for preparing the form to the EAC. The federal form approved by the EAC is a relatively simple form, and those who register voters like to use it for voter registration not only because it is easy, but because it is uniform across the country. Democratic-aligned groups like the federal form a lot.
Arizona had been fighting with the EAC for a while over whether the federal form has to require citizenship information for those who vote to register in Arizona. The EAC did not require such information (in fact deadlocking on the question a while back, in a story I tell in The Voting Wars.) The dispute with Arizona eventually made it to the Supreme Court, which issued an opinion last year in Arizona v. Inter-Tribal Council. In the case, the Supreme Court held that under the NVRA Arizona had to accept the federal form for voter registration, even without a proof of citizenship requirement.
While some promoted this opinion as a big victory for the federal government, I did not see it this way. The opinion by Justice Scalia, joined by the liberal Justices and others, contained a path for Arizona to get the case reversed. I wrote The Supreme Court Gives States New Weapons in the Voting Wars, Daily Beast, June 17, 2013 and Are the Liberal Justices Savvy or Suckers? They are playing to beat John Roberts at his long game, Slate, July 1, 2013, expressing concerns about this case.
Here’s the issue. Inter-Tribal says that the federal government has plenary power to set the manner of conducting federal elections. But it also says that states have the power to set voter qualifications, and suggests that Congress cannot set a manner for voting in federal elections which deprives states of the ability to confirm that voters meet the state’s qualifications. Justice Scalia, for the majority, suggested that Arizona sue the EAC to get it to either change the federal form to require proof of citizenship for Arizona or get a court order for the EAC to do so.