Scalia's 'Voter Access' Case

We are still waiting for a decision about the fate of the Voting Rights Act, but today the U.S. Supreme Court issued an opinion in another voting rights case.

In today's case, the Court ruled in favor of those who support voter access. Arizona must accept federal voter registration forms -- even those federal forms that do not comply with Arizona's restrictive proof-of-citizenship requirements. The opinion was written by Justice Scalia, who stated in February that the renewal of the Voting Rights Act was motivated by "racial entitlement."

Before assuming that Justice Scalia is a recent convert to voting rights protections, recognize that language in today's opinion could eventually undermine voting rights. The details of the opinion could empower state and local partisans who manipulate voting rules. The opinion's reasoning could also hamper federal efforts to protect military voters and restore former offender voting rights.

The Court's Holding

The National Voter Registration Act requires that all states "accept and use" a single, uniform voter registration form for federal elections. States can still use their own registration forms, but they must also accept and use the Federal Form. The purpose of the Federal Form is to increase participation by preventing states from erecting barriers to voter registration.

The Federal Form requires that prospective voters check a box and sign the form affirming they are U.S. citizens under penalty of perjury. Arizona, however, adopted a state law requiring "satisfactory proof" of U.S. citizenship to register, such as a birth certificate, U.S. passport, or state driver's license that shows citizenship. As a result, Arizona initially rejected over 31,000 voter registration applications -- including citizens who registered using the Federal Form.

Today's U.S. Supreme Court opinion held that federal law overrides state law for regulating the manner of federal elections, and therefore Arizona may not reject Federal Forms that lack Arizona's proof of citizenship requirement.

The Deeper Meaning of Justice Scalia's Opinion

Before today's opinion, the law was unclear about whether Congress can set voter qualifications for elections for federal office. Today's opinion states that while Congress clearly has the power over the time, place, and manner of federal elections, the states have the ultimate power in setting voter qualifications for federal elections. In other words, Congress may be the final arbiter of how federal elections are held, but the states are the sole authorities in determining who gets to vote in federal elections.

Here's why that's important.

First, trumpeting state power over voter qualifications allowed Scalia to lay out a plan for Arizona to ultimately get what it wants. Scalia wrote that Arizona could request that the federal Election Assistance Commission modify the Federal Form to include Arizona's proof of citizenship requirement. If the Commission (which currently has no Commissioners) fails to act or rejects the request, Arizona may bring a lawsuit asserting that the standard citizenship affirmation is insufficient to enforce its citizenship qualification. If a judge agrees with Arizona (which is possible -- even though only a few other states have extensive proof of citizenship requirements for registration), the judge could direct the Commission to modify the Federal Form to include Arizona's proof of citizenship requirement.

Second, and more important, Scalia's explicit pronouncement that states have exclusive control over voter qualifications could jeopardize Congress' power to protect voting rights. For example, today's opinion could undermine efforts to encourage Congress to restore voting rights in federal elections to all former offenders nationwide who have paid their debt to society. Professor Marty Lederman has pointed out that today's opinion could bring into question a federal law that requires a state to register a U.S. citizen who moved from the state and now lives abroad (e.g., many members of the military). Another thorny question left unresolved by the opinion is whether photo identification is itself a qualification the state can impose on federal elections (even in defiance of a federal statute to the contrary), or whether photo ID is simply evidence of a qualification like residency.

To be fair, while Justice Scalia wrote this opinion, seven members of the Court signed on to the holding -- including all four Justices appointed by Democrats. Also, the Court's opinion could cut in the opposite direction -- if Congress imposed restrictive qualifications on voting, a state could presumably reject those restrictions -- even in federal elections. That said, Scalia's opinion is not an unqualified victory for those of us who support voting rights.

Fortunately, the technical details in today's opinion will prevent those who push voting restrictions from declaring a win. Justice Scalia, however, may have implanted today's opinion with a virus that may hamper federal voting protections in the future.

Spencer Overton is a Professor of Law at The George Washington University Law School and a Senior Fellow at Demos. He is the author of the book Stealing Democracy: The New Politics of Voter Suppression. Follow him @SpencerOverton.