The Court, by a seven-to-two vote, today held that federal law preempts — that is to say, renders invalid — an Arizona law requiring voter registration officials to reject a voter’s application for registration if it is not accompanied by evidence of U.S. citizenship above and beyond the attestation of citizenship the applicant has made on the federal “Motor Voter” form. Lyle is almost certainly correct, however, 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.
For starters, and as Lyle explains, the Court suggests at the end of its opinion that Arizona should go back to the federal Election Assistance Commission (EAC), where it will have an opportunity to establish that the “mere oath” on the federal Motor Voter form “will not suffice to effectuate Arizona’s requirement” that voters in federal elections be U.S. citizens. If the EAC makes such a showing, the Court suggests, the EAC will have a “nondiscretionary duty” under the federal law “to include Arizona’s concrete evidence requirement on the Federal Form.” (The same might be true, the Court adds, if Arizona demonstrates that it would be arbitrary to deny Arizona’s request because the EAC “has accepted a similar instruction requested by Louisiana.”) And if the EAC rejects Arizona’s application, the state will have an opportunity to establish the same thing in a reviewing court, under the Administrative Procedure Act. Notably, the Court does not resolve what sort of showing Arizona would have to make to demonstrate that the “mere oath” does not “suffice,” other than to say that Arizona must be able to obtain “the information necessary to enforce its voter qualifications.”
(One other potentially important thing: Footnote 9 of the Court’s opinion leaves open the question of whether Arizona could circumvent the Court’s ruling by re-characterizing its law in the following way: (i) to require proof of citizenship beyond the Federal Form attestation in order to register to vote; and then (ii) providing that such “registration” is a qualification for voting in federal elections in Arizona.)
More significantly, the Court suggests that if federal law (the Motor Voter law or a subsequent, clarifying statute enacted by Congress) did prevent Arizona from obtaining the “necessary” information about citizenship as a condition of voter qualification, it would raise a seriousconstitutional question concerning whether Congress can impose such limits, even though the qualification in question is for voting in federal, not state, elections.