Breaking News

Argument recap: Does “may only” mean “shall only”?


Anyone entering the Supreme Court’s chamber Monday morning expecting constitutional drama over the right to vote had to come away quite disappointed.  It took all of fifty minutes of a one-hour argument to get to any constitutional issue, most of the Justices wanted to focus on what “may only” means in a federal law, and one Justice pronounced the current federal-state voter registration regime “a crazy system.”  In an era when very heated debates over curbing voters’ rights regularly occur in political circles, there was none of that as the Court heard Arizona v. The Inter Tribal Council of Arizona (12-71).

At the center of the case is an Arizona law, approved by the state’s voters nine years ago, that requires a would-be voter seeking to register to show proof of U.S. citizenship as an additional requirement besides submitting a federal form which includes a question — enforced by possible perjury prosecution — asking whether or not one is a citizen.

Justice Antonin Scalia, who started out in the argument by criticizing Arizona for not filing the right kind of legal challenge, set the tone for the rest of the argument by trying to pry out of three lawyers what the difference is between “may only require” and “shall.”  The federal “motor voter” law, seeking to streamline the process of signing up to vote, mandates a federal form and puts supposedly strict limits on states’ ability to add other requirements.  It says that they may use some ways to verify a claim of voter eligibility, but “may require only” a short list of added information — and proof of citizenship is not one of those things.

Scalia’s evident purpose was to show sympathy for Arizona’s argument that its requirement of proof of citizenship is not incompatible with the federal law or the federal form, and thus can survive being “preempted.” Since Congress only specified that states “may require only” some information, and gave them explicit permission to find ways to verify eligibility, Arizona has argued that the two mandates can exist side by side.  Scalia seemed clearly to agree, as did Justice Samuel A. Alito, Jr.

It was Alito who, as he was trying to sort out how two governments, one national and one state, can together manage who gets to vote, suggested that the existing arrangement “seems like a very strange system” and then went further and said it “seems like a crazy system.”  By that point in the argument, the Court was very far from displaying a keen interest in how the Constitution’s Elections Clause is supposed to work to make sense of voter registration.

Alito also sought to drive home a worry about states’ ability to ensure voter eligibility by outlining a hypothetical.  A boy, the Justice suggested, who looks to be thirteen years old rides up to a registration office on his bicycle, wearing a T-shirt from a middle school, and seeks to register.  Alito then asked:  “Can the state require him to show some proof of age?”   Washington attorney Patricia A. Millett, speaking for the challengers to Arizona’s proof of citizenship mandate, said registration officials could “use their own eyeballs,” and could use other official evidence to test eligibility.   But she did not concede that citizenship proof could be thrown in as an added requirement.

Arizona’s Attorney General, Thomas C. Horne of Phoenix, made only a brief, passing mention in his final comments of the state’s lately-developed argument that the Constitution gives the states exclusive power to decide who may vote, even in federal elections.  And no Justice even alluded to that argument.

The only constitutional point, raised by Justice Anthony M. Kennedy when the hour’s argument had only ten minutes remaining, was whether the Ninth Circuit Court had used the wrong constitutional analysis in judging Arizona’s proof of citizenship requirement to be invalid because it conflicted with the federal registration law.   The Circuit Court said it would not use the usual “preemption” analysis in judging the validity of a state law when Congress has acted in the same field, because, the Circuit Court contended, Congress gave the states very little role in deciding how to conduct elections for federal officers — the presidency and members of Congress.

Kennedy called that “the Ninth Circuit’s new test,” and commented that “it seems to me that it ignores the state’s very strong interest in the integrity of its elections, and fails “to give sufficient deference to the state.”   Attorney Millett answered that it was not important what the preemption test was, because Arizona had gone beyond what the Elections Clause allows states to do for federal elections.  After all, she said, the Constitution did not give states any “reserve power” to control election qualifications, a power that would be protected independently by the Tenth Amendment.

Although Kennedy was the only member of the Court to raise the point about preemption, if others became interested in it, it could have a strong influence on how the Arizona law fared in the coming decision.  If the usual form of preemption analysis were used, Arizona’s law might have a significantly greater chance of surviving, because that analysis is supposed to be deeply respectful of states’ prerogatives.

Kennedy, who might well have the controlling vote, in view of how the overall argument went, at one point showed some skepticism about states’ power — under the federal registration law — to add complicating requirements to the registration regime.  A simple postcard method of registration, the Justices noted, was intended by Congress to be “presumptive evidence” that a person was eligible to register, and adding other requirements could mean that “the whole utility of this single form is gone.”

Arizona’s proof of citizenship requirement drew some sharp criticism from Justices Ruth Bader Ginsburg, Elena Kagan, and Sonia Sotomayor.  Justice Stephen G. Breyer, who at some points seemed to be inclined toward Arizona’s claims that it was not going beyond what Congress had permitted, came around to the other side as the argument moved on.

The third lawyer at the lectern, Deputy U.S. Solicitor General Sri Srivinivasan, spent most of his time trying to answer Justice Scalia’s persistent questions about what the language of the federal law meant in saying what options were left for state registration requirements.


Recommended Citation: Lyle Denniston, Argument recap: Does “may only” mean “shall only”?, SCOTUSblog (Mar. 18, 2013, 12:35 PM),