Election Law Blog

Joey Fishkin on Justice Thomas’s dissent in yesterday’s Arizona elections case.

Janai Nelson blogs.

See here.

Governing reports.

Ted Robbins reports for NPR from Arizona.

A ChapinBlog.

Here.

Here is a guest post from Josh Douglas:

Justice Scalia, in his majority opinion in Arizona v. Inter Tribal Council, explained that “Arizona is correct that the Elections Clause empowers Congress to regulate how federal elections are held, but not who may vote in them.”  The point, for Justice Scalia, is that Article I, Section 4 of the U.S. Constitution gives Congress the power to regulate only the “times, places, and manner” – the “how” – of elections, but under Article I, Section 2, states retain the ability to determine the qualification of electors, even for federal offices – the “who” may vote.

This language from Justice Scalia’s opinion has caused some concern among the voting rights community.  Allowing states to determine voter qualifications could open the door to restrictive requirements, such as strict voter ID laws.

But there may actually be a silver lining within state qualification rules themselves.  As I recount in a new paper, virtually all state constitutions – which include the state’s voter qualification requirements – explicitly grant the right to vote to the state’s citizens before listing the required qualifications voters must possess.  For example, Wisconsin’s Constitution – the subject of recent voter ID litigation – provides that “Every United States citizen age 18 or older who is a resident of an election district in this state is a qualified elector of that district.”  That is, most state constitutions explicitly grant the right to vote and then provide several voter qualifications, which are typically age, citizenship, and residence.  A few state constitutions also take the right away for those who are mentally incompetent or convicted felons.  (Interestingly, Arizona’s is the only state constitution that does not include an explicit grant of voting rights, but it does provide that elections shall be “free and equal.”)  Additional qualifications that are not enumerated in the state constitution would violate this explicit grant of the right to vote.  The problem, however, is that many state courts have “lockstepped” their state constitutions with federal jurisprudence for the right to vote under the U.S. Constitution, reading the state constitutional provision to go no further than the U.S. Constitution.  Of course, the U.S. Constitution does not grant the right to vote; it is implied within the Equal Protection Clause of the Fourteenth Amendment.  And recent Supreme Court jurisprudence on federal protection for the right to vote has been quite limited.

If Justice Scalia is correct that state qualification rules are what matters and that Congress has no authority to determine qualifications under the U.S. Constitution, then state courts are wrong in using the “lockstep” approach for their constitutional right to vote provisions.  These clauses are broader than the protection afforded under the U.S. Constitution.  They should therefore operate to enjoin strict legislatively-enacted voter qualification requirements, even if those requirements may be permissible under the federal Equal Protection Clause.

In short, Justice Scalia’s push for a renewed focus on state qualification rules might actually be a move in the right direction for voters, at least where it comes to the constitutional right to vote.  The question is whether state courts will follow suit and give their constitutional provisions the independent meaning and scope their language requires.

“I think it’s preposterous that seven people can overturn the votes of over one million Arizona voters to say the honor system works [to verify a voter’s citizenship...] It’s a bunch of baloney. It’s nuts.”

–”Kathy McKee, an activist who helped launch the effort for Proposition 200, criticiz[ing] the ‘idiot judges’ who ruled against Arizona.”

Nina Totenberg reports for NPR.

Lesson about the Supreme Court from today’s voting decision: behind every silver lining there’s a dark cloud.

Spencer Overton blogs at HuffPo.

NYT

WaPo

AP

Lyle Denniston (SCOTUSBlog)

NBC News

Bloomberg

WSJ

Politico

The Nation

MSNBC

USA Today

Ballot Access News

Reuters

I spoke with KPCC’s Take Two about the decision and also to NPR and Slate (links to come).

Earlier I linked to my piece at The Daily Beast and Marty Lederman’s important post from SCOTUSBlog.

Below the fold I’ve added some press quotes I’ve received on the case via email.  MORE TO COME

Continue reading →

In my piece today on Arizona v. Inter-Tribal Council, I express concern about what the Court says about congressional power to set the manner of elections but lack of congressional power to alter state qualifications of voters.  I referenced an important post by Marty Lederman on the topic, who expresses even greater concern than I have about the issue.  You can now read (and must read) Marty’s post at SCOTUSBlog, Pyrrhic victory for federal government in Arizona voter registration case?

I will have to give much more thought to Marty’s issues — it usually takes more than a few hours to fully digest Supreme Court opinions. But I expect that the issues Marty raises will be the subject of major debate among election law scholars and courts in the next few years.