an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Federal Power over Elections & the Hydraulics of Congressional Power
Today’s Supreme Court decision inArizona v. Inter Tribal Council of Arizona offers something important, and surprising, to both sides in the long war over procedural and substantive restrictions on voting in the United States. The holding of the case seems straightforward and modest: When Congress says every state has to “accept and use” a common, federal voter registration form, which is what it said in the 1993 National Voter Registration Act (the NVRA, the “motor voter” law), that means what it sounds like—the state of Arizona can’t say ‘oh, by the way, in Arizona you also need to submit additional documentation with your form proving you’re a citizen, or we’ll toss out your federal form.’
National Voter Registration Form
Indeed the holding looks even more modest than that: the Court notes that Arizona is free to ask the relevant federal agency, the Election Assistance Commission (EAC) (currently hobbled by Republicans in Congress who won't confirm any Commissioners) to please include its proposed citizenship documentation requirements on the federal form, in special instructions that apply only to Arizona residents; if the agency won’t do that, the Court says, Arizona could then sue. The Court says very little about how that case might be resolved. (In a little shout-out to administrative law final exam question writers everywhere, the majority raises but doesn’t answer the question of what admin law has to say about appealing the inaction of an agency that can’t say no because it can’t act at all. “It is a nice point,” the Court says.) So on the specific fight at issue in this litigation, the Court basically seems to have kicked the can down the road. Today’s ruling nonetheless stands for at least the modest proposition that the feds, rather than Arizona, are in charge of the voter registration form and its procedural requirements. Arizona can’t just impose additional documentation requirements on its own.
However, underneath this simple, modest holding we can see some deep movement in the tectonic plates, some shifts in the balance of federal power under the Elections Clause and under the Reconstruction Powers, that might have the effect of raising the stakes in Shelby County v. Holder (the blockbuster case still outstanding this term, regarding Section 5 of the Voting Rights Act) and other cases about the modern sweep of Congressional power under the Reconstruction Amendments. Congress only has so many different powers, and when you pare back one, you raise the stakes for others. You might call it the hydraulics of Congressional power. That’s how this case will really matter in the long run.
Today’s ruling was 7-2. Justice Scalia wrote the majority. That seems remarkable in itself, because from one perspective, this case was the latest round in an ongoing fight between Arizona and the United States about federal immigration law—and specifically, whether and how Arizona can enact immigration-related laws that are tougher than federal law. Last year, Arizona lost the previous round of that fight. The Court invalidated some provisions of Arizona law that had made it a state crime for anybody without the relevant legal status to be in Arizona at all, or to apply for a job there. The Court said those laws were preempted by federal immigration law. Justice Scalia read his sharply worded dissent from the bench in that case: “If securing its territory in this fashion is not within the power of Arizona, we should cease referring to it as a sovereign State.” So where was that guy today—the one who views Arizona’s “sovereignty” as deeply implicated in its “power to exclude from the sovereign’s territory people who have no right to be there”? He was writing the majority opinion holding that Arizona’s law requiring citizenship documentation for voting was entirely preempted by the NVRA.
In fact he went further than that. Breaking new ground, Justice Scalia’s opinion today held, surprisingly, that the normal rules of federal preemption do not apply here: all federal election regulation under the Elections Clause, which gives Congress power to make law about the “Times, Places and Manner” of federal elections, should generally be assumed to preempt state law. Congressional power under this clause is “broad” and “‘paramount’” (p.8, 9); when Congress exercises it, this “necessarily displaces some element of a pre-existing legal regime erected by the States.” (p.11). “The power the Elections Clause confers is none other than the power to pre-empt” (p.11-12), so the usual preemption rules do not apply. (Justice Kennedy wrote separately to disagree with this.)
This part of today’s opinion is a sweeping affirmation of federal power to regulate the procedural elements of federal elections—not just “time” and “place” but everything else, from the machines we use to cast our votes to the deadlines states set and the forms they require, the physical accessibility of polling places and the rules for absentee ballots. To be clear, Congress has not necessarily passed laws about all that stuff. But it has the power to do so, and seven justices just affirmed that power in sweeping terms. This has long-run implications for all the fights about voter identification, registration list purges, absentee ballots, and the rest of the “new vote denial” controversies. If Democrats ever have enough control of both houses of Congress to do it, they will be able to implement their vision of election procedure in a nationwide way, preempting procedural barriers to voting of various kinds, as Congress did in the NVRA in 1993. By the same token, if Republicans ever have complete control of Congress, they will have the power to implement their vision of election procedure, unless those procedural changes so constrain voters’ rights that they run afoul of the Equal Protection Clause. For now, gridlock will prevent much movement in either direction, but the laws we do have, such as the NVRA, will be enforced against the states in a robust way by this Court.
However, the Court also made clear today that the Elections Clause does not give the federal government power over the substance of who can vote in federal elections (see note 8 and accompanying text). This move by the Court was also a surprise. People have been arguing about this issue since a fractured Court in Oregon v. Mitchell, in 1970, upheld federal power to force states to allow 18-year-olds to vote. It might seem odd, even shocking, to hold that federal power under the Elections Clause does not include the power to decide who can actually vote in the election. But what this move really does is shift the action to a different part of the Constitution. In Mitchell itself, most of the justices in the fractured majority thought it was the Fourteenth Amendment, not the Elections Clause, that gave Congress the power to say 18-year-olds can vote. In other decisions from the same era, the Court held that the Fourteenth Amendment itself (section one) meant that states could not limit bond elections to propertyholders or school board elections to parents (and property holders). Surely Congress, under its own power to enforce this Amendment by appropriate legislation, can do the work of making sure states allow all citizens to vote.
And there is something appropriate about locating the relevant Congressional power in the Reconstruction Amendments. After all, the original Constitution, which contains the Elections Clause, contemplated states radically restricting the franchise, especially on grounds of race, sex, property ownership, and so on. The Civil War and Reconstruction shifted the balance of federal and state power in a dramatic way, enabling the federal government to decide cases like the ones referenced in the previous paragraph, which in 1789 would all have seemed like impossible intrusions into the prerogatives of the states regarding who can vote.
Still, what does it mean that Congress lacks the power under the Elections Clause to regulate the substance of who can vote? Writing over at Scotusblog this afternoon, Marty Lederman raised the question of a hypothetical federal law banning felon disenfranchisement. After today’s decision, would such a law pass constitutional muster? It seems to me that the answer is yes—because such a law would be a valid exercise of Congress’ Reconstruction Powers. On the other hand, the reverse is not necessarily true. A federal law requiring felon disenfranchisement might now be unconstitutional, as such a law would not, absent some real logical acrobatics, advance the equal citizenship principle embodied in the Equal Protection Clause—and as of today, the Court has suggested that Congress can’t use the Elections Clause to enact it.
Thus, the Court today clarified considerably the sources of federal power over elections: the Elections Clause gives Congress broad power over procedure, but for the substance of who can vote, we have to turn to the Reconstruction Amendments. The Elections Clause looks firmer, but narrower. Congressional power under the Reconstruction Amendments looks more essential than ever. And that may be a problem, because the Court has famously been chipping away for the last couple of decades at just those Reconstruction Powers. In Shelby County v. Holder, the remaining blockbuster election law case this term, we’ll find out just how far the current Court is prepared to go in paring back what Congress can do under the Fourteenth and Fifteenth Amendments in the area of voting. By the end of June, my view that Congress could ban felon disenfranchisement if it chose to do so may look shakier than it does today. Or it may be that Congress could do that, but had better do it nationwide.*
More in another post about Justice Thomas’ remarkable dissent.