Justin helpfully runs through the major elements of the Ninth Circuit’s holding in Mi Familia Vota v. Fontes, but I wanted to highlight a divide in the opinion I wrote about back in 2022 just as this bill was introduced in Arizona (which I won’t rehash in this post!). From the majority opinion:

Aside from the NVRA’s plain language, our precedent also requires us to hold that Congress has the power to control registration for presidential elections. In 1934, the Supreme Court rejected a narrow framing of Congress’s power over presidential elections, like the view argued here by Republican Appellants. The Supreme Court reasoned:

The only point of the constitutional objection necessary to be considered is that the power of appointment of presidential electors and the manner of their appointment are expressly committed by section 1, art. 2, of the Constitution to the states, and that the congressional authority is thereby limited to determining ‘the Time of chusing the Electors, and the Day on which they shall give their Votes; which Day shall be the same throughout the United States.’ So narrow a view of the powers of Congress in respect of the matter is without warrant.

Burroughs v. United States, 290 U.S. 534, 544 (1934). The Court squarely held that Congress had the power to pass legislation to protect the integrity of the federal election process in the presidential election. Id. at 545; see also Buckley v. Valeo, 424 U.S. 1, 13 n.16 (1976) (citing to Burroughs as more generally “recogniz[ing] broad congressional power to legislate in connection with the elections of the President and Vice President”).

We have also recognized Congress’s power to regulate all federal elections under the NVRA. See Voting Rts. Coal. v. Wilson, 60 F.3d 1411, 1413–14 (9th Cir. 1995) (rejecting a challenge to the constitutionality of the NVRA in part because “the Supreme Court has read the grant of power to Congress in Article I, section 4 [of the U.S. Constitution] as quite broad” and has endorsed that “[t]he broad power given to Congress over congressional elections has been extended to presidential elections” (citing Burroughs, 290 U.S. at 545)).

We hold that H.B. 2492’s requirement of DPOC to vote in presidential elections is preempted by Section 6 of the NVRA.

And from a part of Judge Bumatay’s lengthy dissent on this issue:

But, as a matter of constitutional text, the Elections Clause doesn’t govern presidential elections. The Elections Clause of Article I provides that “[t]he 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 chusing Senators.” U.S. Const. art. I, § 4, cl. 1 (emphasis added). Under that Clause, States have the “duty” to set the time, place, and manner of holding congressional elections, but Congress has the power to “alter” those regulations or “supplant them altogether.” See ITCA, 570 U.S. at 8. The Court has held that the “Times, Places, and Manner” of holding elections “embrace authority to provide a complete code for congressional elections,” including regulation of voter registration. Id. at 8–9. But the Clause is expressly limited to “Elections for Senators and Representatives.” Thus, while the Elections Clause may give Congress power over registration in congressional elections, it doesn’t extend that authority over presidential elections.

Other Clauses of Article II cover presidential elections. First, the Electors Clause lays out much of the groundwork—granting nearly all authority to the States. It provides that “[e]ach State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors[.]” U.S. Const. art. II, § 1, cl. 2. Unlike the grant of a revisory power to Congress in the Elections Clause, the Electors Clause gives the States sole power over the “Manner” of appointing electors to the electoral college. See U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 805 (1995) (describing the Electors Clause as the sort of “express delegation[] of power to the States” by the Constitution necessary for them “to act with respect to federal elections”).

Second, the Time of Chusing Clause provides a narrow role for Congress in presidential elections. The Time of Chusing Clause says that “Congress may determine the Time of chusing the Electors, and the Day on which they shall give their Votes; which Day shall be the same throughout the United States.” U.S. Const. art. II, § 1, cl. 4. So rather than having any power over the “Manner” of holding congressional elections, Congress merely has authority to
choose the date of the presidential election and date of the electoral college vote. . . .

Together, these Clauses form a cohesive structure governing federal elections—States and Congress share authority over congressional elections, but States retain near-exclusive power over presidential elections. Thus, the Constitution forecloses congressional authority to control voter-registration requirements for presidential elections. . . .

And no controlling precedent alters the States’ exclusive power over presidential elections. Citing Ex parte Yarbrough, 110 U.S. 651 (1884), and Burroughs v. United States, 290 U.S. 534 (1934), the district court claimed that the Court has recognized Congress’s power to regulate presidential elections. But that’s wrong. If anything, these precedents reaffirm the principle that Congress’s role in presidential elections is limited, and that the manner of appointing presidential electors is within the “exclusive” “power and jurisdiction of the state[s].” See McPherson, 146 U.S. at 35. Even in the modern era, the Court has continued to express that “the state legislature’s power to select the manner for appointing [presidential] electors is plenary[.]” Bush v. Gore, 531 U.S. 98, 104 (2000) (per curiam). . . .