One of the gestures toward states’ rights that the Founders made in writing the Constitution was to give the states a primary role in deciding who gets to vote – not only in state and local elections, but also in federal elections. But, to protect national interests of the new government they were setting up, the Founders also gave Congress a veto power in this area. It has never been quite clear how the two provisions were supposed to work together, instead of in conflict, and that is at the heart of a new controversy over who controls the right to vote. The controversy arises at the intersection of two recent trends in the management of elections. First, a number of states, out of a fear of voter fraud (especially, a suspicion that non-citizens who are illegally in this country are voting), have been imposing tight new ID requirements to ensure that only citizens get to vote. Second, Congress and a federal election management agency have been proceeding, under a 1993 law, to try to ensure that barriers to registration are eased so that more people get to go to the polls. Those contrasting trends have been made more difficult to sort out, as a constitutional matter, because the Supreme Court in a major ruling last year gave guidance that points in two directions: buttressing federal power to try to make registration requirements uniform, but virtually inviting states to sue to try to get their way in enforcing their own registration rules.
The Court’s decision in mid-June 2013 in Arizona v. Inter Tribal Council of Arizona was supposed to clarify the competing national and state roles, under the National Voter Registration Act of 1993 and also under the Constitution. That case arose because the voters of Arizona in 2004 had passed so-called “Proposition 200” saying that, because “illegal immigrants have been given a safe haven in this state” and were attempting to vote, it was necessary to impose a requirement to show an official ID in order to be registered to vote.
Arizona, later joined by Kansas, began asking the agency set up by Congress to carry out the National Voter Registration Act (the Election Assistance Commission) to add that ID requirement to the federal voter registration form that Congress had mandated, at least for federal elections. The federal form is a key document, because no state wants to conduct federal and state elections separately, under different registration systems.
The federal Commission resisted the requests, concluding that the form was sufficient as is – that is, requiring an applicant seeking to register to simply swear, on the form, that they are a citizen. (In passing the 1993 Act, Congress had considered, but rejected, a proposal to add a voter ID requirement to the conditions for registering to vote in federal elections.)
Full Article: Constitution Check: Who decides who gets to vote?.