On Monday, I wrote that the Court’s 7-2 decision in Arizona v. Arizona Inter Tribal Council “gave a strong affirmation to Congress’s power to regulate state voter-registration processes” and “refused to narrow the scope of Congress’s power to supervise federal election procedures in the states.” That remains the general view. (See coverage here, here, and here.) Some commentators I respect find the decision more mixed as an affirmation of federal power over state voting procedures. At SCOTUSblog, Lyle Denistonconcluded that the opinion “assured states that they retain the ultimate power to decide who gets to vote. The apparent bottom line: states cannot now require voters to show proof that they are U.S. citizens, but the Court has given them a plan that could gain them that power.” Also in SCOTUSblog, Georgetown Law Professor Martin Lederman argues that “what appears at first to be a significant victory for the federal government might in fact be something much less than that — indeed, might establish important restrictions on Congress’s authority to determine eligibility for voting in federal elections, in a way that implicates current and potential future federal legislation.” And at the Daily Beast, election-law guru Richard Hasen warns that the decision “may give states new powers to resist federal government control over elections.” It’s hard to think of three smarter people. I continue to think that the decision is a big win for Congress’s power. The storm clouds these commentators discern may be threatening, but also may pass over easily.
The two major worries concern (1) the opinion’s suggested alternate route by which Arizona can seek approval of its citizenship-documentation requirements for voter registrants, and (2) a lengthy dictum in the six-justice majority opinion expressing a narrow view of an enigmatic earlier case, Oregon v. Mitchell. These portend future defeats, the commentators warn, either for the National Voter Registration Act itself or for a larger power of Congress to regulate state voter-eligibility and registration requirements.
The first worry comes from a section of the majority opinion noting that, under the act, states can request the Election Assistance Commission to put specific instructions on the federal mail-in registration form telling registrants of specific information their state requires. Arizona did that, but the Commission split 2-2 on whether that request complied with the act. The state had the option of challenging that denial in court, but instead it simply implemented its citizenship-documentation rule without permission.