Make what you will of Judge Melgren’s analysis of preemption, or the hints of his constitutional stance on the federal-state balance of authority under the Elections Clause—his decision in Kobach v. The United States Election Assistance Commissionis a mechanical exercise that leaves the reader without any sense of what this case isabout. Kansas and Arizona have not merely made a “determination” of what they need to verify the citizenship of state residents seeking to become voters. The history behind this litigation is more complex, with more history to it, and the court knew it. It chose, however, to follow example of the Supreme Court and to do as the High Court has done in other cases, like Purcell v. Gonzalez and Crawford v. Marion County, and leave the real world out. Some might say that the Supreme Court is bound to disregard the politics behind these cases and train its eye on the “law” alone. But the Justices’ fidelity to this proposition is mixed. Justice Scalia, for example, has enlivened his constitutional position on campaign finance doctrine with references to the history of incumbent manipulation of the campaign finance laws—including evidence of political mischief that he found quite compelling in the very case under review.
McConnell v. Federal Election Commission, 540 U.S. 93, 260 (2003) (“But let us not be deceived. There is good reason to believe the ending of negative campaigns was the principal attraction of the legislation.”) His view of the constitutional question was inseparable from context—from an inquiry into what might “really be going on.” The motivation behind restrictions enacted in the name of reform, and the disingenuousness of the policy justifications legislators offered, were confronted explicitly in his analysis. This not the only example to be found in these cases. See Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett, 131 S. Ct. 2806, 2825 (2011) (noting how the State revised its website after oral argument to change the statement of its legislative purpose in the enactment of a public financing statute).
But nothing like this skepticism is displayed toward official justifications of the proof-of-citizenship requirements in Arizona v. Inter Tribal Council of Arizona, Inc., 133 S. Ct. 2247 (2013), and now in Kobach. For all one knows in reading Justice Scalia’s analysis in Inter Tribal Council, Kansas and Arizona just happened to enact simple enforcement procedures against non-citizen voting; nothing in the world at large, within their states or elsewhere in the national political conflicts over voting rights, is allowed to shed light on their purposes. At stake is only and simply the constitutional allocation of federal and state authority over elections.
Full Article: The Kobach Case as Voting Rights Jurisprudence –.