Voting Blogs: The Kobach Case as Voting Rights Jurisprudence | More Soft Money Hard Law

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. 

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