I have now had a chance to review the transcript in the Arizona case, argued today in the Supreme Court. I agree with Adam Liptak that the Justices appear somewhat divided along ideological lines, although Justice Kennedy’s questioning suggests he could well affirm the result of the lower court (though not necessarily the reasoning) to reject the Arizona form. It also would not surprise me, if the Court rejects the Arizona form, to see Justice Scalia concur in the result with a suggestion that Arizona should refile its case against the zombie U.S. Election Assistance Commission for its failure to include its citizenship information on the federal form. Justice Scalia appears to think the procedural posture of this case is wrong, though on the merits of reading the statute he thinks that the federal government must allow states to require additional proof of qualifications before allowing someone to register. The Chief Justice did not say much at the argument, and I take it that he could go either way as well.
But what is most significant to me from the argument is the failure to focus on the constitutional power under the Elections Clause. I called this a potential “sleeper case of the year” because there was the potential for the Court to rework state-federal power relations to specify rules in relation to federal elections. Justice Kennedy did ask one question about the standard of reviewing congressional power under the Clause, but it seems far more likely here that the case will turn on issues of statutory interpretation, or the failure to properly present a challenge to the federal form, and it will not be a major constitutional case on the meaning of the Elections Clause.
Expect an opinion by the end of June.