So, American citizen, you think you have a right to vote for your federal representatives? Think again. U.S. Supreme Court Justice Antonin Scalia just disabused you of that notion — although in a backhanded sort of way. In his majority opinion earlier this month striking down the Arizona law requiring voters to produce documentary evidence of citizenship in order to cast a ballot, Scalia stated in no uncertain terms that the Constitution allows Congress to “regulate how federal elections are held, but not who may vote in them.” Notably, not one of the liberal members of the court challenged his assertion. The actual language of the Constitution gives Congress the power to override state laws governing the “time, place and manner” of conducting federal elections. Many scholars believed that the term “manner” was broad enough to encompass the qualifications of voters. But the Scalia opinion took pains to disavow the one Supreme Court opinion which seemed to suggest just that. In 1970, in the case of Oregon vs. Mitchell, the court upheld a congressional enactment requiring states to allow 18-year-olds to vote in federal elections.
But Scalia pointed out that only one of the justices in the Mitchell majority based the decision on the Elections Clause of Article I of the Constitution, the clause Scalia now says deals only with the how and not the who. The other four members of the majority relied on the Equal Protection Clause of the Fourteenth Amendment. But in more recent years, the new conservative majority of the court has greatly limited Congress’ authority to legislate under that provision.
As a consequence, it is at least arguable that Congress no longer has the power to pass laws concerning the qualifications to vote in federal elections. The ruling in Arizona vs. Inter-Tribal Council would appear to make vulnerable, for example, existing federal laws that require states to allow people who recently moved out of the state to vote by absentee ballot in presidential elections. It would presumably also preclude Congress from enacting new legislation providing for ex-felons on parole and probation to vote in federal elections in states that disenfranchise them.
Full Article: Time to provide a right to vote: Opinion | NJ.com.