Where the Arizona proof of citizenship dispute might lead

election law and constitutional law, Elections Clause, Supreme Court

Rick P. earlier noted that Republican National Committee v. Mi Familia Vota is pending for an emergency application for a stay before the Supreme Court. There are complicated issues about the procedural posture and the timing, including which way a case like Purcell cuts after two separate Ninth Circuit panels weighed in with conflicting results, which I won’t discuss in this post. We might see some emergency order that could affect a small but non-trivial percentage of voters in Arizona in their ability to participate in the presidential election (they are already excluded from participating in the state election and already permitted to participate in the congressional election). And there is a separate issue of vote-by-mail writ large at stake in the case, but that won’t be the focus of this post.

Back in March 2022–two and a half years ago!–I sketched out what might be at stake with respect to this particular Arizona law in the long run (i.e., if the Court grants cert in this case). In brief, some federal laws purport to regulate federal elections (both congressional and presidential), but their ability to regulate presidential elections might be called into question. Some provisions (e.g., the Fifteenth Amendment or the Spending Clause) might provide an adequate basis for a given law being upheld. But it could be quite disruptive to others, in the event a state opted not to follow that law.

In a way, one might assume that there might be an inherent Republican-Democrat divide on the issue, as that’s how this issue in Arizona has been litigated–obviously, Republicans in Arizona backed the law, and Democratic-leaning groups have opposed it. The RNC is now the lead party on the case.

But I am not so sure that its effects would necessarily always please Republicans or Democrats.

Consider some federal laws that govern presidential elections to a similar extent of the “manner” of holding congressional elections:

If Congress lacks the power to do these things in presidential elections, states could feel free to ignore them, just as Arizona is arguing it should be free to ignore the federal voter registration rules in presidential elections and adopt its own.

Now, there is some subtlety in how the briefs are approaching this issue. Most significantly, Burroughs, which I discussed in that 2022 post, looms large as some basis for federal involvement in presidential elections, and it either needs to be distinguished or overturned. From the RNC brief:

But no decision of this Court has given Congress the power to displace state rules for registering and voting in presidential elections. Burroughs v. United States merely confirmed that an application of the Federal Corrupt Practices Act to political committees trying to influence the selection of presidential electors complies with the constitutional allocation of authority. 290 US. 534, 544-48 (1934). The FCPA did not “interfere with the power of a state to appoint electors or the manner in which their appointment shall be made”—a contention that can’t be made about the district court’s application of the NVRA. Id. at 544. And Buckley v. Valeo upheld a system of public financing as an exercise of Congress’s spending power—a power not relevant to the NVRA. 424 U.S. 1, 90-91 (1976) (per curiam). Neither case can be read to displace Arizona’s constitutional power to regulate its state process for registering to vote for presidential electors.

In other words, to the extent Burroughs is still good law, it did not interfere with state power under Article II–regardless of the source of power that the federal government invoked in Burroughs. That would preserve some things, but it would call into questions (I think) all of the legal provisions I mentioned above.

An amicus brief from a group of states, led by Kansas and West Virginia, has a different take on Burroughs:

In contrast, the Electors Clause vests full authority in the States (not Congress) to “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.” U.S. CONST . art. II, § 1, cl. 2. Thus, Congress cannot use its Elections Clause power to regulate presidential elections; it is “limited to” what is enumerated therein. United States v. Lopez, 514 U.S. 549, 566 (1995).

No precedent from this Court says otherwise, as Applicants correctly note. That includes Burroughs v. United States, 290 U.S. 534 (1934), on which the district court relied. See Mi Familia Vota, 691 F. Supp. 3d at 1089. Burroughs presumed that a law interfering “with the power of a state to appoint” presidential elections would be constitutionally questionable. 290 U.S. at 544. It thus stands for the principle that the federal government’s interest in federal elections justifies federal law ensuring their integrity. See id. at 547. That is plainly correct, and it is equally plain that the federal government can protect that interest and ensure the integrity of presidential elections. But that in no way undermines the fact the Electors Clause “gives the States far-reaching authority over presidential electors.” Chiafolo v. Washington, 140 S. Ct. 2316, 2324 (2020).

. . .

That is, in a presidential election, the State is the voter. It follows that how a State exercises its right to vote is left to its discretion, see, e.g., McPherson, 146 U.S. at 35, and, as a corollary, that federal laws governing voter registration do not limit the States’ discretion.

The argument here is slightly different on Burroughs. It starts with the same premise on Burroughs, that the federal government cannot tread on state power under Article II. But it makes a new move–the federal government has an affirmative power–or at least an “interest” that “justifies federal law”–to ensure “integrity” in elections. Here, there is no citation to where that power comes from (except that it is “plainly correct”), along with the “equally plain” claim that the federal government can “ensure the integrity of presidential elections” (again, no constitutional citation).

Unlike the RNC, the states appear to want to ensure that some federal laws (and perhaps some of the laws I listed above) could be used to interfere with some state power, so long as it was in service of the end of ensuring the “integrity” of a presidential election. Still, it’s not clear to me the later sentence I excerpt, “how a state exercises its right to vote is left to its discretion . . . and, as a corollary, that federal laws governing voter registration do not limit the States’ discretion.” It seems to me that a federal law purporting to regulating the “integrity” of a presidential election might, in effect, constrain state discretion.

The DNC has weighed in on the other side:

First, this Court has recognized that Congress’s authority “to preserve the purity of presidential … elections” is inherent in the power it “undoubtedly[] possesses … to preserve the departments and institutions of the general government from impairment or destruction.” Burroughs v. United States, 290 U.S. 534, 544-545 (1934). Indeed, “[t]he importance of [the president’s] election and the vital character of its relationship to and effect upon the welfare and safety of the whole people cannot be too strongly stated.” Id. at 545. Thus, “to say that Congress is without power to pass appropriate legislation to safeguard such an election … is to deny to the nation in a vital particular the power of self-protection.” Id.

Second, the NVRA’s regulation of presidential elections is a “Necessary and Proper” exercise, U.S. Const. art. I, §8, cl. 18, of Congress’s powers under the Elections and Electors Clauses. This Court has long described the Elections Clause as “comprehensive,” “embrac[ing] authority to … enact the numerous requirements … necessary … to enforce the fundamental right involved.” Smiley v. Holm, 285 U.S. 355, 366 (1932). And under its Electors Clause power to “determine the Time of ch[oo]sing” presidential electors, U.S. Const. art. II, §1, cl. 4, and to “count[]” those electors’ votes, id. cl. 3, Congress has chosen to hold presidential and congressional elections simultaneously, 2 U.S.C. §7; 3 U.S.C. §1. Given that simultaneity, applying the NVRA to presidential elections is a necessary and proper way both to regulate the “manner” of congressional elections, U.S. Const. art. I, §4, cl. 1, and to ensure that the “count” of presidential electors’ votes, art, II, §1, cl. 3, is “beneficial[ly]” carried out, M’Culloch v. Maryland, 17 U.S. 316, 408-409 (1819). Congress’s determination that one voter-registration process should apply to all federal elections is certainly “rationally related”—i.e., “convenient,” “useful,” or “conducive”—to the “implementation of” Congress’s Elections and Electors Clause powers, United States v. Comstock, 560 U.S. 126, 133-134 (2010).

The Solicitor General also filed a brief:

Necessary and Proper Clause. Congress may “make all Laws which shall be necessary and proper for carrying into Execution” the “Powers vested by this Constitution in the Government of the United States.” U.S. Const. Art. I, § 8, Cl. 18. A law is “necessary” if it is “conducive to [the] beneficial exercise” of the federal government’s enumerated powers and “proper” if it is consistent “with the letter and spirit” of the Constitution. McCulloch v. Maryland, 4 Wheat. 316, 409, 421 (1819).

This Court has repeatedly recognized that “Congress has power to regulate Presidential elections and primaries” under “the Necessary and Proper Clause.” Buckley v. Valeo, 424 U.S. 1, 90 (1976) (per curiam). For example, the Court has upheld a federal law prohibiting the use of force and threats in presidential elections, explaining that the Clause empowers the federal government “to protect the elections on which its existence depends from violence.” Ex Parte Yarbrough, 110 U.S. 651, 658 (1884). The Court also has upheld federal campaign-finance laws that apply to presidential elections, explaining that the Clause empowers Congress “to protect the election of President and Vice President from corruption.” Burroughs v. United States, 290 U.S. 534, 545, 547 (1934); see Buckley, 424 U.S. at 14 n.16, 90-91, 132.

Like those laws, the NVRA falls comfortably within Congress’s authority under the Necessary and Proper Clause. Free and fair presidential elections, in which the people can hold the President answerable for his actions and the actions of his subordinates, are “essential to the successful working” of the Executive Branch — indeed, “essential to the healthy organization of the government itself.” Yarbrough, 110 U.S. at 666. Congress may thus regulate presidential elections in order to “safeguard” them “from impairment or destruction.” Burroughs, 290 U.S. at 545. Congress also may regulate those elections so as to provide “a fully effective voice to all citizens” and make executive officials “as responsive as possible to the will of the people whom they represent.” Oregon v. Mitchell, 400 U.S. 112, 134 (1970) (opinion of Black, J.); see id. at 124 n.7. Congress exercised that authority in the Act, which safeguards presidential elections by preempting “discrimi- natory and unfair registration laws,” 52 U.S.C. 20501(a)(3), and which promotes the Executive Branch’s democratic accountability by increasing “voter participation,” ibid.

The NVRA is “proper” because it respects “state sovereignty.” Printz v. United States, 521 U.S. 898, 924 (1997). Under the Constitution, each State retains the sovereign power to “order the
processes of its own governance” by regulating its own elections. Trump v. Anderson, 601 U.S. 100, 110 (2024) (per curiam) (citation omitted). But that power over governance “does not extend to federal officeholders and candidates” — “especially the Presiden[t].” Id. at 110-111. The President “represents all the voters in the Nation,” and presidential elections “implicate a uniquely important national interest.” Id. at 116 (brackets and citation omitted). Congressional regulation of presidential elections thus “in no sense invades any exclusive state power.” Burroughs, 290 U.S. at 545.

Applicants argue (Appl. 14) that, because Article II empowers Congress to “determine the Time of chusing the Electors, and the Day on which they shall give their Votes,” U.S. Const. Art. II, § 1, Cl. 4, Congress lacks the power to regulate presidential elections in any other way. But this Court has already considered and rejected that argument, stating that “[s]o narrow a view of
the powers of Congress in respect of [presidential elections] is without warrant.” Burroughs, 290 U.S. at 544. Applicants’ contrary theory would threaten to invalidate not only the NVRA, but also a host of other federal election statutes that apply to presidential elections. See, e.g., 52 U.S.C. 10101(b) (coercion and intimidation of voters); 52 U.S.C. 20102(a) (accessibility of polling places to disabled voters); 52 U.S.C. 20302(a) (absentee voting by members of the armed forces and overseas voters).

Applicants also argue (Appl. 13-14) that federal regulation of presidential elections invades the States’ exclusive power to “appoint” presidential electors “in such Manner as the Legislature thereof may direct.” U.S. Const. Art. II, § 1, Cl. 2. Again, this Court has already considered and rejected that argument. See Burroughs, 290 U.S. at 544. Under Article II, “the appointment and mode of appointment of electors belong exclusively to the States.” McPherson v. Blacker, 146 U.S. 1, 35 (1892). Each State may thus pick among the “various modes of choosing the electors” — e.g., “by the legislature itself,” “by vote of the people for a general ticket,” and “by vote of the people in districts.” Id. at 29. But once a State chooses popular elections, as all States have, Congress may regulate those elections under the Necessary and Proper Clause. See Burroughs, 290 U.S. at 544-545.

I am somewhat doubtful about the Necessary and Proper Clause as a basis for the exercise of authority here, or to use it in conjunction with the Counting Clause. The ratification debates are pretty clear that some were concerned about the Elections Clause because it would give states such broad authority over congressional elections, and there was pretty broad recognition that the Electoral College and its related provisions were designed to exclude Congress as much as possible from the process. The suggestion that the “manner of holding elections” clause for Congress could be found implicitly elsewhere for presidential elections strikes me as unlikely.

Additionally, I don’t know that I necessarily agree with the Solicitor General’s gloss on Buckley (here, I agree with the RNC’s gloss). Here’s Buckley in context:

Appellants argue that Subtitle H is invalid (1) as “contrary to the ‘general welfare,’ ” Art. I, s 8(2) because any scheme of public financing of election campaigns is inconsistent with the First Amendment, and (3) because Subtitle H invidiously discriminates against certain interests in violation of the Due Process Clause of the Fifth Amendment. We find no merit in these contentions.

Appellants’ “general welfare” contention erroneously treats the General Welfare Clause as a limitation upon congressional power. It is rather a grant of power, the scope of which is quite expansive, particularly in view of the enlargement of power by the Necessary and Proper Clause. McCulloch v. Maryland, 4 Wheat. 316, 420 (1819). Congress has power to regulate Presidential elections and primaries, United States v. Classic, 313 U.S. 299 (1941); Burroughs v. United States, 290 U.S. 534 (1934); and public financing of Presidential elections as a means to reform the electoral process was clearly a choice within the granted power. It is for Congress to decide which expenditures will promote the general welfare: “(T)he power of Congress to authorize expenditure of public moneys for public purposes is not limited by the direct grants of legislative power found in the Constitution.”

That is, this language in Buckley is pretty clearly about Congress’s power to spend money relating to presidential elections, not a general power over them.

But, in the end, the DNC and SG briefs seem, in a perhaps unusual alliance, to align with the states’ brief, at least along one dimension–there is some, perhaps inherent, power for the United States to regulate the “integrity” or “purity” or what not about elections. To me, it could be a potentially interesting area of consensus–or some distinction between philosophies within this universe–in briefing in the months to come.

I don’t have any particularly strong thoughts at this stage beyond highlighting these arguments, except to note two things in tension: a lot of the Court’s precedents in this area are not particularly “originalist,” but a lot of the Court’s recent precedents in election law cases are not particularly “originalist,” either.

In any event, this is the first jockeying over what the remaining scope of federal power over presidential elections might be in the event the Court reconsiders some of its jurisprudence and distinguishes congressional power over congressional and presidential elections. And I haven’t tried to address all of the topics of the Fifteenth Amendment (or the Fourteenth Amendment) or other provisions. It also doesn’t attempt to get into other deeply messy questions, like state power over the “qualifications” of voters and its power to regulate the “manner” of holding elections. Nor does it look at whether this law–about citizenship–has unique other federal interests at stake. And I doubt the Court will address this matter in any meaningful depth before the 2024 election. But as long as Arizona’s law remains the subject of viable litigation, it’s a major question that the Court might address in the near future.

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