Arizona v. Inter Tribal Council: Opinions Have Layers


[Image (Art Lien sketch) courtesy of SCOTUSBlog]

Yesterday’s opinion in Arizona v. Inter Tribal Council of Arizona got lots of headlines both for its subject matter (proof of citizenship in voting), its author (Justice Scalia) and the apparent incongruity between the result and the usual views of the author.

But, with apologies to the movie Shrek, I’d like to suggest that this opinion (like an ogre) has layers – each of which is important to the field of elections:

OUTER LAYER (SHORT-TERM): Arizona’s proof of citizenship requirement cannot be enforced against anyone using the federal form to register to vote. This is a key point that was hailed by a wide variety of groups that are involved in voter registration and is, at least for now, a huge setback for anyone concerned about the possibility of non-citizens illegally registering to vote.

INNER LAYER (MEDIUM-TERM): Scalia’s opinion opens the door to an interesting procedural possibility; namely, litigation against the EAC (which is still the agency of record with regard to the National Voter Registration Act) under the Administrative Procedure Act. Such proceedings would be used to allow a court to review the agency’s decision (or failure to decide) on proof of citizenship requests like Arizona’s … and, as Scalia notes, could raise the “nice point” of what to do about an agency that has not taken an action because it is unable to do so – the EAC’s current status given the lack of Commissioners. [UPDATE: This is indeed what Arizona has in mind.]

INNERMOST LAYER (LONG-TERM): The big issue here – and one which I suspect we will see for years to come – is the distinction Scalia draws between the province of the federal government (the mechanics of registration) and that of states (qualifications to vote). SCOTUSBlog’s Lyle Denniston summarizes it neatly:

Scalia[‘s] opinion laid a very heavy stress on the power of states under the Constitution to decide who gets to vote. Indeed … the opinion said that the Constitution simply does not give Congress the power to decide who can qualify, but only how federal elections are run procedurally. [emphasis added]

This last layer – more than the other two – is worth watching closely as we move forward.

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