Sleeper Case of the Year?

I’ll be anxiously awaiting the release of the transcript Monday in the Supreme Court oral argument in Arizona v. Inter Tribal Council. In brief, the question is whether Arizona can refuse to accept a simple federal form for voter registration (which Congress in the 1993 National Voter Registration Act required states to accept), on grounds Congress has exceeded its constitutional power under the Elections Clause  to “make or alter” state rules for congressional voting.

I’ll be writing more about the case after I read the transcript, but at this point I can say the following: This is one of those cases where if the Supreme Court affirms the result in this case (that Arizona must accept the federal form), it will be no big deal, but if the Court reverses it would mark a major change in U.S. election law.  Many earlier Supreme Court cases noted Congress’s broad power to set rules for federal elections. For example, here’s the Court in the 1997 case, Foster v. Love:

The Elections Clause of the Constitution, Art. I, §4, cl. 1, 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.” The Clause is a default provision; it invests the States with responsibility for the mechanics of congressional elections, see Storer v. Brown, 415 U.S. 724, 730 (1974), but only so far as Congress declines to pre-empt state legislative choices, see Roudebush v. Hartke, 405 U.S. 15, 24 (1972) (“Unless Congress acts, Art. I, §4, empowers the States to regulate”). Thus it is well settled that the Elections Clause grants Congress “the power to override state regulations” by establishing uniform rules for federal elections, binding on the States. U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 832—833 (1995). “[T]he regulations made by Congress are paramount to those made by the State legislature; and if they conflict therewith, the latter, so far as the conflict extends, ceases to be operative.” Ex parte Siebold, 100 U.S. 371, 384 (1880).

(My emphasis.) A contrary ruling in the Arizona case would alter the state-federal balance over federal elections and give states a greater ability to manipulate election rules for partisan reason, something especially dangerous in the era of the Voting Wars—not to mention preventing Congress from imposing uniform voting standards in the U.S., such as the requirement that we elect all members of Congress from single-member districts.

In case you are interested, here is the Question presented: “Did the court of appeals err 1) in creating a new, heightened preemption test under Article I,  Section 4, Clause 1 of the U.S. Constitution (“the Elections Clause”) that is contrary to this Court’s authority  and conflicts with other circuit court decisions, and 2) in holding that under that test the National Voter Registration Act preempts an Arizona law that requests persons who are registering to vote to show  evidence that they are eligible to vote?”

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