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Arizona Again Before the Supreme Court: Below the Radar but Important

When is US Citizenship Not an Issue to Cast a Vote?

Coming in somewhat under the radar this term of the Supreme Court is a case out of Arizona involving election law. The case is Arizona vs. Inter-Tribal Council of Arizona, Inc. and oral argument is set for March 18th. At issue is a state law known as Proposition 200 which requires that registered voters be required to show proof that they are citizens of the United States. Unlike voter ID laws in effect or in dispute elsewhere which require things like photo ID to actually vote, this law deals with voter registration. The Ninth Circuit Court of Appeals determined that the law was unconstitutional and the state of Arizona appealed to the US Supreme Court to have that ruling stayed until they can appeal in full. The Court earlier this term refused to issue a stay despite the stated dissent of Justice Alito, then later decided to grant review in the case. The state of Arizona is arguing that the Ninth Circuit simply created out of thin air a rationale to strike down the state law on constitutional grounds, namely the Elections Clause.

Article I, Section 4 is the Elections Clause which states: “The times, places and manners for holding elections for Senators and Representatives shall be prescribed in each state by the legislatures thereof; but the Congress may at any time by law make or alter such regulations…” Put another way, the states enact election laws within their states, but when it concerns federally elected officials, the federal Congress can change or alter these state laws. This makes intuitive sense since it involves federal officers. Generally, when Congress acts in this area, it is to create uniformity among the 50 states with respect to elections which are considered “on-point.” For example, the creation of a federal Election Day is a perfectly acceptable use of federal Congressional power. There is a reason Election Day is held when it is held each year and the date changes each year, although not the month. Conversely, states are free to hold primary elections whenever they want, or to hold caucuses, or even use the convention method to choose candidates since the action is NOT “on-point.”

Another area where the line is somewhat blurred is with respect to voter registration which is exactly what is at issue here. The Elections Clause is the constitutional grounds used to determine whether a person is qualified to register in any state. For example, some states disenfranchise convicted felons which is acceptable. Conversely, some states have attempted in the past to impose term limits on federally elected officials. This would run afoul of the Constitution since there is no national term limits amendment. Absent federal Congressional approval, states cannot unilaterally term limit their federal office holders.

The main issue in this case is the National Voter Registration Act, more popularly known as the Motor Voter Bill, which passed in 1993. This federal law attempted to, among another things, create uniformity with respect to voter registration in an effort to increase the number of registered voters and, therefore, participation in the political process. One such device was registering to vote by mail, or when one applied for driver’s license or had one renewed. It is the reason a voter registration form is usually found at the back of a state income tax return or car registration renewal form. Now comes the tricky part.

As part of that federal attempt at uniformity, the actual registration form asks two questions at the top which all states must also ask: Will you be 18 years old by time the next election occurs? And, “Are you a citizen of the United States?” If a person answers “Yes” to both questions, then one can be registered to vote in the state in which they live. Proposition 200 out of Arizona went a step further by requiring actual proof of US citizenship before one could actually be registered to vote.

Consider the following: If John Q. Public walks into a bank and asks for a $10,000 loan, they are asked several questions to determine if they are eligible for that loan. They may be asked the purpose, what their monthly income is, how long they have been employed at their current job, and maybe even what their credit rating is. No competent bank loan officer would simply take the would-be debtor’s word for answers to any of these questions. They would have to provide a pay stub to prove their income, perhaps a letter from their employer stating their length of employment, and provide a social security number so that the loan officer could verify their credit rating. Yet, under the Motor Voter Law, simply checking the “YES” box to both questions grants you the right to vote. I argue that the right to vote is considerably more important than whether John Q. Public gets a loan yet the verification process for that loan is more vigorous than the more important right to vote. Arizona, by requiring proof of United States citizenship, was not circumventing the federal law but enhancing it (in my opinion). Furthermore, the enhancement was a commonsense idea that obviously the federal Congress overlooked in 1993.

As for the legal aspects of this case, the Ninth Circuit did not decide it based on the Supremacy Clause and for good reason if one wants to reach the more liberal result. When deciding a case based on the Supremacy Clause, courts are generally VERY careful to maintain that delicate balance between Federal and State laws. Generally, this is called “federalism” and it is an area that most liberals generally either ignore, despise, or just plain do not understand.
Instead, the Ninth Circuit relied solely on the Elections Clause, specifically the part that states “…but the Congress may at any time by law make or alter such regulations…,” to strike down Proposition 200. They argued in 1993, the federal Congress relied on Article I, Section 4, not the Supremacy Clause, to enact the Motor Voter Bill. Furthermore, they determined that the Elections Clause granted Congress full and final veto power over any state law or regulation dealing with Federal elections. That is the main gist of the case before the US Supreme Court now. The state of Arizona argues that the rationale was incorrect and that if the Supremacy Clause was applied to justify their reasoning, Proposition 200 simply enhances the 1993 law and in no way circumvents it.

Take the example of a federal minimum wage law. If Congress establishes a national minimum wage of $8.00 per hour, no state can circumvent that law by passing a minimum wage of $7.99 per hour. Clearly, they would run afoul of the federal law and the Supremacy Clause would prevail here. Of course, there are some who want to reopen previous Supreme Court jurisprudence and do away totally with federal minimum wage standards, but that is another issue altogether. As it stands now, it cannot be done. However, if a state establishes a minimum wage of $8.75 per hour, they clearly do not run afoul of the federal law. In fact, they enhance the federal law. Likewise, if in an attempt to establish some uniformity in voter registration procedures among the states the federal government requires that the applicant be (1) 18 years old at the time of the next election and (2) a citizen of the United States, a state law requiring the applicant the prove their age or their citizenship status is simply, like the minimum wage example, an enhancement on the federal requirement of uniformity and likely would survive a challenge under the Supremacy Clause. That is why the Ninth Circuit simply discarded that rationale and opted for Elections Clause rationale since they did not have to delicately balance the issues at stake that the concept of federalism demands.

In effect, they are using a reverse logic of sorts to reach their conclusion. They argue that the Elections Clause is more important than the Supremacy Clause not only because of its position in the Constitution itself but also because it involves an issue central to the tenets of representative government- elections. But if that is so, as the illustration I posited earlier contrasting these registration forms with a loan request, then any law which strengthens the integrity of the process would have to stand. In effect, the liberal Ninth Circuit wants its cake and wants to eat it also. How a court can rule that laws designed to enhance voter registration because the Elections Clause is more important than other constitutional clauses then use that rationale to essentially strike down a law that builds upon that concept is a Herculean twist of logical thought.

For anyone who has read any of my diary entries, you would know that there are two things that really boggle my mind when it comes to liberals. The first is their stupidity and ignorance when it comes to the Citizen’s United decision. There, they seem to ignore several facts the most important of which is that they cannot prove that campaign donations create corruption. They ignore the fact that the campaign donation follows the candidate’s views, not the other way around. Secondly, they seem to confuse campaign finance with lobbying where there is, admittedly, a higher likelihood of corruption and influence. Intuitively we would like to think that a campaign contribution “buys” a vote on a position important to a donor. But, you are not going to find a coal company donating to a candidate dedicated to ending coal mining in the United States. The second area that boggles my mind is with election laws. I cannot understand how liberals can say with a straight face that voter ID laws or even such a law that is at issue in this case sullies the electoral process or disenfranchises anyone. The only attempt at “disenfranchisement” in this case are people who SHOULD be disenfranchised- non-US citizens. Coupling these two together, in the wake of the Citizen’s United decision, Obama himself warned, incorrectly, that the decision would lead to a flood of contributions from foreigners into the electoral process. If that event which never materialized is bad, then allowing non-US citizens to actually cast a vote in elections is infinitely worse. And more common, by the way, if states are not granted the power to verify the status of citizenship on a registration form.

It will be difficult to determine an actual outcome in this case. If Rehnquist were the Chief Justice, one could predict with great accuracy that he would have found the Ninth Circuit’s rationale running seriously afoul of federalism concerns. Today, the closest we have to that would be Anthony Kennedy who has raised this issue most recently in a somewhat related case- the Voting Rights Act case out of Alabama that has created so much post-argument controversy. I would add Alito’s vote there since he originally wanted not only the case granted but Proposition 200 enforced in the 2012 election cycle. Scalia would be a wild card and I would expect Thomas to agree with Alito. Kagan, Sotomayor and Ginsberg often see some nefarious reason for state election laws as their questioning in the Alabama case revealed while Breyer and possibly Roberts sometimes strive for the middle, more narrow grounds. Putting together a majority one way or the other here will be difficult and it may be a plurality decision one way or the other with a remand to the Ninth Circuit to reconsider their decision. Either way, because of the complexity of the issues and what is at stake coupled with a late March argument, one should not expect a decision before June.

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