Editorials: Voting rights in Justice Kennedy’s Constitution | Edward Foley/SCOTUSblog

Justice Anthony Kennedy’s jurisprudence on voting rights must be understood in the context of his overall constitutional philosophy. While certainly appreciative of the role that democratic elections play as part of the republican form of government established by the Constitution — see, for example, his concurrences in U.S. Term Limits, Inc. v. Thorton (1996) and Cook v. Gralike (2001) — Kennedy did not view voting rights as having a paramount status within the pantheon of constitutional rights. Nor did Kennedy consider the protection of voting rights as legitimating the rest of the Constitution. Rather, he saw voting rights as important insofar as they were part of the Constitution. For him, it was the priority of the Constitution itself that gave voting rights their significance. The hierarchy of authority, as he saw it, ran from the Constitution to democracy, not the other way around.

We can see this philosophy at work in Kennedy’s 2013 concurrence in Arizona v. Inter Tribal Council, a case about the pre-emptive effect of congressional regulation under the elections clause of Article I, Section 4. Ordinarily, the Supreme Court hesitates before finding that a federal statute pre-empts state law, and this general hesitation has been doctrinally formalized as a “presumption against pre-emption.” Writing the opinion for the court, however, Justice Antonin Scalia construed the distinctive language of the elections clause concerning the interplay of state and federal power over the “Times, Places, and Manner” of congressional elections to mean that this ordinary presumption against pre-emption does not apply in the specific context of the elections clause. Although Kennedy agreed with the court’s bottom-line finding of pre-emption in the particular case, he balked at Scalia’s characterization of congressional regulation under the elections clause as being any different from commerce clause regulation or the exercise of any other congressional power granted by the Constitution. “There is no sound basis for the Court to rule,” Kennedy argued, “that there exists a hierarchy of federal powers so that some statutes pre-empting state law must be interpreted by different rules than others, all depending on which power Congress has exercised.” The need to protect state sovereignty from unduly expansive pre-emption, he continued, “is the same regardless of the power Congress invokes, whether it is, say, the commerce clause, the war power, the bankruptcy power, or the power to regulate federal elections under Article I, § 4.”

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