U.S. Supreme Court

A Scalia turnabout? Justice authors opinion striking down Arizona voter requirement


In an opinion by Justice Antonin Scalia, the U.S. Supreme Court has struck down Arizona’s requirement that would-be voters submit proof of citizenship.

Scalia’s majority opinion (PDF) found that the Arizona law conflicts with a federal “motor voter” law. The federal law allows would-be voters to mail in a registration form, without supplying proof of citizenship. Instead, the federal law says, those signing the form need only swear that they are citizens.

Scalia said states weren’t entirely hamstrung, however. They may still reject would-be voters based on information establishing they are ineligible. Also, they may ask the U.S. Election Assistance Commission to alter the federal form to include information they need to determine eligibility. If the commission rejects a request, the states may appeal. In the case before the court, Arizona wasn’t able to persuade the commission to change the form, but it may still appeal, Scalia said.

Scalia had appeared to side with Arizona in March oral arguments. At that time, he had suggested that it would be fine for a state to ensure the integrity of its voting system when the federal form is lacking. “When the commission fails to do what enables the state to assess qualifications, the state will do it,” he said. “No problemo.”

The 7-2 opinion in opinion in Arizona v. Inter-Tribal Council is based on the elections clause, which allows Congress to pre-empt state regulations governing the “times, places and manner” of holding congressional elections.

The federal motor-voter law says states must “accept and use” the uniform federal form. Scalia wrote that the requirement could have two interpretations. “It might mean that a state must accept the federal form as a complete and sufficient registration application; or it might mean that the state is merely required to receive the form willingly and use it somehow in its voter registration process.” But the federal mandate implies the former, Scalia wrote.

“For example, a government diktat that ‘civil servants shall accept government IOUs for payment of salaries’ does not invite the response, ‘sure, we’ll accept IOUs—if you pay us a ten percent down payment in cash.’ Many federal statutes contain similarly phrased commands, and they contemplate more than mere willing receipt.”

Arizona had cited a presumption against pre-emption invoked in supremacy clause cases. But Scalia rejected the idea, saying the court had “never mentioned such a principle” in elections clause cases. Justice Anthony M. Kennedy objected to that portion of Scalia’s opinion in a concurrence.

“There is no sound basis for the court to rule, for the first time, that there exists a hierarchy of federal powers so that some statutes pre-empting state law must be interpreted by different rules than others, all depending upon which power Congress has exercised,” Kennedy wrote.

Justices Clarence Thomas and Samuel A. Alito Jr. dissented. “The court reads an ambiguous federal statute in a way that brushes aside the constitutional authority of the states and produces truly strange results,” Alito said. “Under the Constitution, the states, not Congress, have the authority to establish the qualifications of voters in elections for members of Congress.”

Writing at SCOTUSblog, University of California at Davis law dean Kevin Johnson said the ruling should not be read as an indication that the court will uphold the Voting Rights Act in a different pending case. “The case today involved a question of statutory construction, not a constitutional challenge,” he wrote.

Prior coverage:

ABA Journal.com: “In arguments on Arizona voting law, Scalia sees ‘no problemo’ for state requirements”

ABAJournal.com: “Retired Justice O’Connor played a role in Arizona case to be argued Monday”

ABAJournal.com: “Arizona’s Citizenship Requirement for Federal Voting to Be Reviewed by Supreme Court”

ABA Journal: “Justices will probe Arizona’s voter registration law”

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