On Monday, the Supreme Court ruled 7-2 against Arizona’s voter registration law, which passed in 2004 with strong 56% support, including over 40% support from Hispanic residents. This law required proof of U.S. citizenship when registering for a variety of public services and functions.
The Supreme Court didn’t actually strike down the Arizona law on its own merits – in other words, they didn’t rule that its requirements were unacceptable from a Constitutional standpoint. They affirmed an appeals court judgment that Arizona could not override the National Voter Registration Act of 1993, commonly known as the “Motor Voter Law.” As the Associated Press explains, this law sets insanely weak requirements for voter registration, and stipulates that only the federal government can modify them for individual states:
The federal “motor voter” law, enacted in 1993 to expand voter registration, requires states to offer voter registration when a resident applies for a driver’s license or certain benefits. Another provision of that law — the one at issue before the court — requires states to allow would-be voters to fill out mail-in registration cards and swear they are citizens under penalty of perjury, but it doesn’t require them to show proof. Under Proposition 200, Arizona officials require an Arizona driver’s license issued after 1996, a U.S. birth certificate, a passport or other similar document, or the state will reject the federal registration application form.
While the court was clear in stating that states cannot add additional identification requirements to the federal forms on their own, it was also clear that the same actions can be taken by state governments if they get the approval of the federal government and the federal courts.
Arizona can ask the federal government to include the extra documents as a state-specific requirement, [Supreme Court Justice Antonin] Scalia said, and take any decision made by the government on that request back to court. Other states have already done so, Scalia said.
And there’s no way people who ignored America’s immigration laws to cross the border illegally would lie about it, right? Their good word should be enough to get them on the voting rolls. Opponents of Arizona’s enhanced registration security claim it has blocked over 31,000 “potentially legal” voters, and they’re pretty sure most of them weren’t illegal aliens, because they said so, that’s why.
This is delirious lunacy. The all-seeing surveillance state can grill American citizens like cheese sandwiches when they try to do anything from opening a business to applying for tax exempt status, but we have to pretend it’s 1950 for the rest of eternity when it comes to voter registration. There’s only one interface between the Leviathan State and its citizens where the former requires no documentation from the latter, and it’s voting. Anyone who wants to see what real “voter suppression” looks like should talk to the Tea Party groups persecuted by the IRS. That didn’t involve setting a firm standard that everyone was required to meet; it was the uneven application of government power against certain groups of Americans based on their political ideology. But I don’t see any of the groups that freak out over voter ID rushing to denounce the IRS with equal vigor.
Having said that, today’s Supreme Court decision is about the uneasy border between state and federal power, not voter identification as such. The majority ruled that the state of Arizona could not modify the registration forms provided by the federal government under the Motor Voter law; the two dissenters, Justices Clarence Thomas and Sam Alito, argued the reverse, quite passionately. From Justice Thomas’ dissenting opinion:
I think that both the plain text and the history of the Voter Qualifications Clause, U. S. Const., Art. I, §2, cl. 1, and the Seventeenth Amendment authorize States to determine the qualifications of voters in federal elections, which necessarily includes the related power to determine whether those qualifications are satisfied.
To avoid substantial constitutional problems created by interpreting §1973gg???4(a)(1) to permit Congress to effectively countermand this authority, I would construe the law as only requiring Arizona to accept and use the form as part of its voter registration process, leaving the State free to request whatever additional information it determines is necessary to ensure that voters meet the qualifications it has the constitutional authority to establish.
Under this interpretation, Arizona did ???accept and use??? the federal form. Accordingly, there is no conflict between Ariz. Rev. Stat. Ann. §16???166(F) (WestCum. Supp. 2012) and §1973gg???4(a)(1) and, thus, no pre-emption.
In rejecting Justice Thomas’ argument, the Court validated one of the major criticisms of the Motor Voter Law, which would probably be of some interest to the electorate of 1993, if we had some way to communicate the decision to them. But we can only move forward, and those who portray today’s decision as a massive blow against voter identification aren’t reading the majority opinion very carefully, since Justice Scalia very clearly spelled out a strategy for the people of Arizona to restore their preferred security measures.