Voting-rights advocates generally don’t look to Justice Antonin Scalia for comfort. During oral arguments earlier this year in Shelby County v. Holder, the case in which the Supreme Court struck down a central part of the Voting Rights Act of 1965, Justice Scalia called the act a “perpetuation of racial entitlement.” But a growing circle of legal scholars is focusing on a lower-profile ruling — issued one week before the Shelby County decision and written by Justice Scalia — that may point the way to a new approach to protecting voting rights. The 7-to-2 decision, in Arizona v. Inter Tribal Council of Arizona, struck down an Arizona law requiring anyone who wanted to vote to provide proof of citizenship. It said the state could not impose a rule that was more restrictive than the federal “motor voter” law, which requires only a sworn statement of citizenship by the voter.
Congress passed the motor-voter law under its power to set the “times, places and manner” of federal elections as authorized by Article I, Section 4 of the Constitution, known as the elections clause. The clause is much less well known than, say, the equal protection clause of the 14th Amendment, and yet Congress’s power under it, Justice Scalia wrote, “is paramount, and may be exercised at any time, and to any extent which [Congress] deems expedient.”
“That sort of woke everybody up again,” said Samuel Issacharoff, a professor at New York University School of Law who has studied the elections clause’s possibilities.
The problem, Mr. Issacharoff said, is that voting laws based on intentional racial discrimination, which the Voting Rights Act has been so successful at blocking, are both rarer and harder to identify today. “A lot of the contemporary problems are not well handled through the 50-year-old mechanism of the Voting Rights Act,” he said.
Full Article: Plan B for Voting Rights – NYTimes.com.