Rick linked to an NPR story on Arizona’s HB 2492, and this line caught my eye: “Under HB 2492, if elections officials can’t find evidence that a federally registered voter is a U.S. citizen, that voter can’t vote by mail, or cast a vote in presidential elections.” It picks up on a distinction in federal power over elections, an issue that’s lurked under the surface of a variety of election laws over the last hundred years but may return to the surface–the difference between congressional and presidential elections.

In a 2013 decision in Arizona v. Inter Tribal Council of Arizona, the Supreme Court concluded that the “Federal Form” for voter registration in federal elections under the National Voter Registration Act preempted Arizona’s statutory proof of citizenship requirement. But, the Court also noted that, pursuant to the statute, “a State may request that the EAC [Election Assistance Commission] alter the Federal Form to include information the State deems necessary to determine eligibility,” and the case was sent back to consider whether the form should be amended. (This was at a time of extraordinary dysfunction at the EAC, when it lacked a quorum to do business.) In subsequent litigation on the issue, states like Arizona lost.

Justice Scalia wrote the majority opinion in Inter Tribal for a (mostly) 7-2 court. Justice Kennedy concurred in part. Justice Alito dissented on statutory grounds. And Justice Thomas dissented. I want to focus on an issue raised in footnote 2 of Justice Thomas’s opinion:

Article I, §§ 2 and 4, and the Seventeenth Amendment concern congressional elections. The NVRA’s “accept and use” requirement applies to all federal elections, even presidential elections. See § 1973gg-4(a)(1). This Court has recognized, however, that “the state legislature’s power to select the manner for appointing [presidential] electors is plenary; it may, if it chooses, select the electors itself.” Bush v. Gore, 531 U.S. 98, 104 (2000) (per curiam) (citing U.S. Const., Art. II, § 1, and McPherson v. Blacker, 146 U.S. 1, 35 (1892)). As late as 1824, six State Legislatures chose electoral college delegates, and South Carolina continued to follow this model through the 1860 election. 1 Guide to U.S. Elections 821 (6th ed. 2010). Legislatures in Florida in 1868 and Colorado in 1876 chose delegates, id., at 822, and in recent memory, the Florida Legislature in 2000 convened a special session to consider how to allocate its 25 electoral votes if the winner of the popular vote was not determined in time for delegates to participate in the electoral college, see James, Election 2000: Florida Legislature Faces Own Disputes over Electors, Wall Street Journal, Dec. 11, 2000, p. A16, though it ultimately took no action. See Florida’s Senate Adjourns Without Naming Electors, Wall Street Journal, Dec. 15, 2000, p. A6. Constitutional avoidance is especially appropriate in this area because the NVRA purports to regulate presidential elections, an area over which the Constitution gives Congress no authority whatsoever

Apart from this being the first Supreme Court citation to Bush v. Gore, the footnote draws on the constitutional distinction between Congress’s power under the Elections Clause and the Presidential Electors Clauses, a gap identified in the literature. (It wasn’t something the majority got into, as it wasn’t the heart of the dispute in this case.)

Under the Elections Clause, “The times, places and manner of holding elections for Senators and Representatives, shall be prescribed in each state by the legislature thereof; but the Congress may at any time by law make or alter such regulations, except as to the places of choosing Senators.” In other words, Congress may “make or alter” the “regulations” for the “manner” of congressional elections.

Under the Presidential Electors Clauses, however, “Each state shall appoint, in such manner as the Legislature thereof may direct, a number of electors, equal to the whole number of Senators and Representatives to which the State may be entitled in the Congress . . . ,” whereas “The Congress may determine the time of choosing the electors, and the day on which they shall give their votes; which day shall be the same throughout the United States.” There is no express power of Congress over the “manner” of “direct[ing]” the “appoint[ment]” of presidential electors.

(It’s worth noting this isn’t a problem with statutes like, say, the Voting Rights Act, enacted pursuant to the Fifteenth Amendment, which speaks of “the right of citizens of the United States to vote,” without qualification of office.)

It’s not unlike the point raised in a recent Harvard Law Review Note, as the constitutional directives in presidential elections differ. And it’s not unlike the reason why many in Congress so heavily defer to states in the administration of presidential elections when counting electoral votes.

This has yielded some challenges in how the Supreme Court has reviewed federal rules affecting presidential elections. In Burroughs v. United States, for instance, the Court in 1934 addressed application of the Federal Corrupt Practices Act to a presidential election. It noted, “Neither in purpose nor in effect does it interfere with the power of a state to appoint electors or the manner in which their appointment shall be made. It deals with political committees organized for the purpose of influencing elections in two or more states, and with branches or subsidiaries of national committees, and excludes from its operation state or local committees. Its operation, therefore, is confined to situations which, if not beyond the power of the state to deal with at all, are beyond its power to deal with adequately. It in no sense invades any exclusive state power.” But it went on, “To say that Congress is without power to pass appropriate legislation to safeguard such an election from the improper use of money to influence the result is to deny to the nation in a vital particular the power of self protection,” and, “The power of Congress to protect the election of President and Vice President from corruption being clear, the choice of means to that end presents a question primarily addressed to the judgment of Congress.”

So, now, to the text of Arizona’s statute: “A person who has registered to vote and who has not provided satisfactory evidence of citizenship as prescribed by Section 16-166, subsection F is not eligible to vote in presidential elections.”

Arizona appears to be expressly seizing on this constitutional distinction, as it hopes to confront any problems with the NVRA by identifying Congress’s lack of authority to regulate voter registration (i.e., the “manner” of holding elections) in presidential elections. And it appears that Arizona is trying to avoid Inter Tribal by setting up a showdown on the scope of Congress’s power over presidential elections as distinct from congressional elections. And it could have fallout for how states administer elections broadly–NVRA, HAVA, UOCAVA, and other laws that principally rely on the Elections Clause.

Time will tell as this issue gets litigated in the months ahead, but it’s worth emphasizing that Arizona’s particular emphasis in this case may bring old divisions to the fore over Congress’s power.

As a post script, the first lawsuit challenging HB 2492 does not raise an NVRA claim. It only raises constitutional claims–this, despite the plaintiffs filing a complaint that repeatedly cites Inter Tribal and the preemptive effect NVRA has on voter registration rules. It seems like a deliberate omission to refuse to raise an NVRA claim. And perhaps it’s a sign of some concern of raising such an issue under the NVRA may exploit the divide identified above. UPDATE: I’m reminded that notice must be given before an NVRA claim, so I should not read much into it at the moment. My apologies on this–we’ll wait and see.