A Supreme Court decision Monday that struck down an Arizona law requiring people to provide proof of citizenship when registering to vote was hailed by voting-rights advocates as a big win. But several legal scholars say the ruling, written by Justice Antonin Scalia, could in fact set back the voting-rights cause in cases to come. As Spencer Overton, a law professor at George Washington University writing inThe Huffington Post, put it, Scalia “may have implanted today’s opinion with a virus that may hamper federal voting protections in the future.” In his opinion, Scalia found that the Constitution’s “Elections Clause” gives Congress the authority to set the “times, places, and manner” for holding congressional elections. As a result, Scalia ruled, Arizona’s law, known as Proposition 200, is pre-empted by the federal National Voter Registration Act, which requires states to accept a federal form that makes people attest under penalty of perjury that they’re citizens, but doesn’t make them show proof. So far so good for voting rights. But Scalia also ruled—and six other justices agreed—that the Elections Clause does not give Congress the power to set voter qualifications.
The clause, Scalia wrote, “empowers Congress to regulate how federal elections are held, but not who may vote in them” (emphasis in original). Whether Congress or the states had that authority had long been an unresolved question in election law. No longer.
Because it has been the states that have generally sought to impose restrictions on voting, and the federal government that has fought those restrictions—not just recently, but ever since Reconstruction—experts say the court’s decision could end up undermining voting rights.
“The court’s view of the ‘qualifications’ clause may give states new powers to resist federal government control over elections,” Rick Hasen, a law professor at the University of California, Irvine, and a prominent election-law expert, wrote at The Daily Beast.
Of course, exactly what counts as a voting “qualification” remains to be defined by future rulings. But Marty Lederman, a law professor at Georgetown, told MSNBC that the ruling could threaten a range of existing or potential federal laws and court rulings aimed at protecting voting rights—“anything where Congress wanted to expand the franchise to people who states might exclude,” Lederman said.
Full Article: Did Scalia add ‘virus’ to Arizona voting opinion? — MSNBC.