The Supreme Court this week halted Arizona's attempt to thwart the will of Congress when it established national norms for voter registration in federal elections with the National Voter Registration Act of 1995 ("NVRA").
This is good news considering the wave upon wave of state-based legislative attempts to suppress the vote in advance of the 2012 elections. Seven justices agreed that when it comes to the Elections Clause powers bestowed on Congress, states are preempted in fashioning their own obstacles to a simplified, mail-in voter registration system.
The case, Arizona v. The Inter Tribal Council of Arizona, represents another chapter in the State's bullying tactics against its Latino residents. Having passed the first of the notorious anti-immigrant (read: anti-Latino) state laws in the country, Arizona went on to make it difficult for those targeted communities to vote out the representatives that enacted SB1070.
Contrary to the streamlined federal requirements of the NVRA, Arizona required newly naturalized citizens (the majority of them in Arizona, Latino) to attach documentation of "proof of citizenship" to their registration forms, including in some counties copies of their naturalization papers. In other cases registrants were forced to appear in person at faraway locations opened only during weekday business hours, naturalization papers in hand. Over 31,000 registrants were rejected and after repeated attempts close to 11,000 of those were able to register, but the remainder, 20 percent Latino, were discouraged from attempting a second or third try.
The NVRA was meant to fix all that. It uniquely established, for the first time in history, a government obligation to register voters by requiring agency-based registration. It also completely eliminated the notoriously discriminatory features of in-person registration by requiring all states to accept mail-in voter registration forms for federal elections, which in turn, was applied to registration for all elections.
This completely changed the landscape for street registration campaigns and finally streamlined registration efforts bringing the U.S. closer in line to the best practices used in other Western democracies. But in the words of john a. powell, voting in America is really about membership. And people really fight over membership.
So the Supreme Court had to weigh in on the perennial states' rights versus federal norms that one would think would be subsumed neatly by the Constitution's simple, axiomatic mandate, that federal law is the supreme law of the land.
Unfortunately, when it comes to elections, things are not that simple. Start with the fact that, unbelievably, we still have no national norm for voting in federal elections. Bush v. Gore reminded us of that.
Then add to it the fact that the states' rights mantra has been gospel for the conservative right in this country perpetuating as it did, slavery as an economic engine for the country, Jim Crow after Reconstruction, and now even the discriminatory Electoral College system. Finally, add the opinions of the majority of the current Supreme Court that have turned upside down the role of Congress in ameliorating the worst effects of discrimination by championing a new federalism to the detriment of long standing preemption doctrines.
The Arizona case this week was supposed to be different. It turns on the clear powers Congress has under the Elections Clause, to "make or alter" the rules and practices of federal elections already established by the states. Seven justices agreed that Arizona was preempted by the NVRA and upheld the simplified federal form for mail-in, voter registration. Big sigh of relief, here.
But since everyone reads the tea leaves at this point in the Supreme Court's term, what does this all mean in future cases? Does the fact that Justice Kennedy refused to join the part of Justice Scalia's opinion stating that the presumption against preemption doesn't apply to Election Clause cases say anything on how he will apply his swing vote to the other major voting rights case in Shelby County v. Holder? Hopefully not since the Voting Rights Act turns on Congress' powers to confront racial discrimination under the 14th and 15th Amendments.
Does the fact that seven justices clearly think states can get around the preemption problem by petitioning the Election Assistance Commission for waivers to add more cumbersome requirements for voter registration raise concerns? Definitely, since Justice Scalia practically provided a road map to Arizona on a winning strategy. Does the fact that seven justices appear to say that the Elections Clause only governs procedures for voting but not qualifications for voting raise concerns down the line? Definitely, for those of us who were hoping to achieve the ultimate congressional fix to felon disfranchisement -- in times of mass incarceration, perhaps the most discriminatory and egregious remnant of voter discrimination left on the books.
So yes. We'll take this victory for all voters. But keep an eye on Arizona, again.