10th Circuit May (or May Not) Side with States Over Federal Government in Voting Dispute Because the EAC Has No Commissioners [Updated]

According to an early AP report.

This would not be a surprising result and would save the 10th Circuit from having to deal with the difficult constitutional question of where Congress’s power to set the “manner” of Congressional elections ends and the states’ power to set voter “qualifications” begins.

UPDATE: The updated AP report suggests the opposite reading to what I mentioned above: that the failure of the EAC to have a commission means the federal government should win.  Here is the new lede: “A federal appeals panel in Denver on Monday suggested a partisan stalemate in Congress may mean Republicans in Kansas and Arizona will be unable to force federal election officials to impose proof-of-citizenship requirements on voter registration forms.”

I would have a hard time seeing the Supreme Court upholding a ruling that would prevent the states from enforcing voter qualifications (if this is indeed enforcing voter qualifications) because the EAC has no commissioners. A court could order the EAC’s staff to require the information on the form.


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