Court to rule on Arizona voting law (FINAL UPDATE)
on Oct 15, 2012 at 9:33 am
Final update 10:57 a.m. (Further update 3:51 pm. The Court has rescheduled the Mount Holly housing equality case for the October 26 Conference. See closing paragraphs, below.)
The Supreme Court agreed on Monday to rule on the constitutionality of a state requirement that voters must prove they are U.S. citizens before they register to vote and cast their ballots. The Court granted review of an Arizona case in which it previously had refused the state’s request to block a lower court decision that struck down that requirement. Arizona’s voters adopted that law when they passed “Proposition 200” in 2004. The Court will not rule on the case until after this year’s election, so the requirement will not be in effect next month. (The case is Arizona v. Inter Tribal Council of Arizona, Inc., docket 11-71.)
That was the only new case granted Monday. In one significant denial, the Court refused to consider imposing a heavier duty on managers of employee retirement plans to justify investing plan assets in the company’s own stock. The Court turned aside without comment two petitions on that issue. (Gray v. Citigroup, 11-1531, and Gearren v. McGraw-Hill Companies, 11-1550.)
The new Arizona voting rights case is important not only because of the citizenship proof requirement, but perhaps even more so because it calls on the Court to sort out the cooperative but sometimes conflicting roles of the state governments and Congress in regulating election procedures. In its petition, the state of Arizona complained that the Ninth Circuit Court, in nullifying Proposition 200, had created a new test for when states must yield to Congress in their control of elections.
The grant of review was a bit of a surprise, since the Court on the last day of last Term had denied a stay application, over the lone dissent of Justice Samuel A. Alito, Jr. That denial assured that the citizenship mandate would not be imposed for the November 6 election, but it did not settle whether the Court would grant review. That is what happened with the order Monday morning. The case probably will be argued in February, with a decision by the end of the Term in late June.
Under the Constitution, state legislatures are given the authority to decide “the time, place and manner” of holding elections, including elections for federal offices, but Congress is given the authority to “make or alter such regulations.” The Ninth Circuit interpreted that Elections Clause to give Congress full and final veto power over any state law or regulation dealing with federal elections — that is, for Congress and for the Presidency. Congress used that power in 1993, in enacting the National Voter Registration Act, the Circuit Court said, and any state requirement that conflicts with that Act’s provisions must yield.
In reaching the result, the Circuit Court spelled out a special kind of constitutional analysis for judging when a state vote requirement is displaced by a federal one. It ruled that this analysis is different under the Elections Clause than under the Supremacy Clause. Usually, if a state law is found to be preempted, that results from the operation of the Supremacy Clause. But the Ninth Circuit said that, while the Supremacy Clause requires courts to maintain a delicate balance between federal and state interests, the Elections Clause established its own balance with Congress in a position to veto any state procedure on federal elections.
The Circuit Court said that the usual “presumption against preemption” that applies to protect state laws under the Supremacy Clause does not apply when the Elections Clause is at issue. Moreover, it ruled that Congress need not, in overruling a state on federal election procedures, provide a plain statement of its intention to override the state procedure.
The Circuit Court concluded that Arizona’s requirement that voters show specific documents to prove they are citizens in order to register and to vote conflicted with the National Voter Registration Act, which Congress passed nineteen years ago in an effort to increase the number of eligible voters taking part in federal elections, and to ensure that voter registration rolls are accurate and up to date.
Under the federal Act, a specific federal registration form has been created, and it is to be used in the nationally uniform format whenever a state allows would-be voters to sign up either by mail or in person. States have the option of creating their own registration forms, but those may not conflict with the contents of the federal form.
At the top of the federal form, the would-be voter is asked if he or she is a citizen of the U.S., and if he or she is now, or by election day will be, eighteen years old. Those are the parts of the federal form that the Circuit Court found overrode the Arizona citizenship mandate.
In granting review, after previously refusing to stay the Ninth Circuit decision, the Justices appeared to have signaled their keen interest in the way the lower court interpreted the Elections Clause and its preemptive effect. Secondarily, the Justices may well be interested in how state registration rules work in tandem with, or conflict with, federal rules.
While agreeing to hear the Arizona case, the Justices took no action on Monday on the significant controversy over the attempt by Ohio state officials to deny some voters the right to cast their ballots this year on the three days preceding election day on November 6. That controversy is fully briefed now, and presumably the Court will take some action on it soon, since the Justices are not due to hold another Conference on pending cases until October 26.
The Justices also took no action on another major case that they had considered at their Conference last Friday — a test of whether the federal law that bans discrimination in home sales or rentals allows lawsuits that claim that a housing policy falls more heavily on minority residents. The Court had agreed to rule on that issue last Term, but that case settled before a decision could be reached. A new case has reached the Court from one of the eastern suburbs of Philadelphia — Mount Holly Township in New Jersey. The Third Circuit Court ruled in that case that the federal Fair Housing Act of 1968 does allow lawsuits claiming a “disparate impact” of a housing policy on minorities.
Presumably, the Justices will again examine the Mount Holly case at their October 26 Conference. (The case is Mount Holly Township Council v. Mount Holly Gardens Citizens in Action, 11-1507.) (UPDATE: The case has been rescheduled for the October 26 Conference, according to the Court’s electronic docket.)