In Arizona v. Inter Tribal Council, the Supreme Court held that Arizona’s Proposition 200, which required proof of citizenship in order to register to vote in federal elections, was preempted by the National Voter Registration Act (“NVRA”) because the NVRA did not require such proof from voters. Shortly after the oral argument in the case, I noted that “the practical reality of compliance with the NVRA may very well mean that a state has to maintain two separate voter registration rolls” for state and federal elections. It appears that Arizona has taken this observation to heart, joining Kansas in setting up a voter registration system for state and local elections that is separate from its system governing federal elections. Under the dual system, voters who provide proof of citizenship will be able to vote in all elections, but those who do not will only be able to vote in federal elections. In adopting this approach, neither Kansas nor Arizona heeded my warning after Inter Tribal was decided about the significant risk of liability that comes with operating separate voter registration regimes.
By setting up dual voter registration systems, Arizona and Kansas may have miscomprehended the scope of congressional authority over elections, which, ironically, is the same mistake that the Court made in resolving the Inter Tribal case. The Court based its decision solely on the Elections Clause of Article I, Section 4, and ignored the other provisions of the Constitution that expand federal power (and by implication limit state authority) over elections. The Elections Clause gives states control over the “times, places and manner of holding Elections for senators and representatives” but subject to Congress’s power “to make or alter such regulations.” The Court rightly recognized that federal power is at its apogee when it seeks to regulate federal elections pursuant to its authority under the Clause, power that the Court described as both “comprehensive” and “paramount.”