In June, the U.S. Supreme Court once again trampled on the rights of the states.  The media took little notice.

Since it became a state in 1912, Arizona has had a citizenship requirement for voters.  In 2004, the people of the state, in an effort to combat voter fraud, enacted Proposition 200.  This initiative requires every application for voter registration be “accompanied by satisfactory evidence of United States citizenship.”  Arizona statutory law further provides that various documents can serve as proper evidence.  A prospective voter may, for example, supply a copy of his birth certificate, passport, driver’s license (if the issuing authority verifies citizenship), or naturalization documents.

The National Voter Registration Act (NVRA) requires that the states “accept and use” a federal form in the voter-registration process.  The federal Election Assistance Commission (EAC) designs the form, which differs from state to state, as it contains a number of state-specific instructions.  Arizona had asked the EAC to include the state’s “satisfactory evidence” requirement on the federal form to be used in Arizona, but the EAC declined to do so.  Instead of requiring documentation of citizenship, the form provided by the EAC simply instructs a registrant to affirm under penalty of perjury that he is a U.S. citizen.

In addition to the EAC form, then, Arizona was requiring registrants to provide documentary proof of citizenship.  When challenged in federal court about continuing to demand documentary proof, Arizona argued that the NVRA’s “accept and use” provision only directed the state to accept and use the EAC form as part of the voter qualification process.  Arizona compared the practice to an airline’s treatment of electronic tickets.  An airline may issue and accept an electronic ticket even if it also requires the passenger to produce an I.D. to demonstrate that he is the person named on the ticket.  Opponents of Proposition 200 argued that “accept and use” forbids a state presented with a completed EAC form from requesting additional information.

Although Arizona’s proof-of-citizenship requirement seems modest and unobtrusive, the U.S. Supreme Court held in Arizona v. Inter Tribal Council that Proposition 200’s provisions are preempted by federal law and are thus void.  The vote was 7-2, with Justices Thomas and Alito dissenting.

In delivering the opinion of the Court, Justice Scalia rejected Arizona’s efforts to avoid preemption and held that

the fairest reading of the statute is that a state-imposed requirement of evidence of citizenship not required by the Federal Form is inconsistent with the NVRA’s mandate that States accept and use the Federal Form.

In the opinion, the Court simply assumed that the Time, Place, and Manner Clause of the Constitution allows the federal government to require use of the EAC form.  Under this clause,

The Times, Places, and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the places of chusing [sic] Senators.

Justice Scalia described the effect of the Time, Place, and Manner Clause as follows:

In practice, the Clause functions as “a default provision; it invests the States with responsibility for the mechanics of congressional elections, but only so far as Congress declines to pre-empt state legislative choices.”  Foster v. Love, 522 U.S. 67, 69 (1997) (citation omitted).

While this is true to an extent, the Court spent little time explaining how a proof-of-citizenship requirement falls within the matters that Congress can regulate.  The Voter Qualification Clause of the Constitution provides that “the Electors in each State shall have the Qualifications requisite for the Electors of the most numerous branch of the State Legislature” in election for the U.S. House of Representatives.  In other words, the states are at liberty to set the qualifications of voters for the federal House, so long as those qualifications are also imposed on voters for the popular branch of the state’s legislature.  If a state requires voters for the federal House to be current on tax obligations or to own a certain amount of property, those requirements must also apply to voters in state house races.  Under the Voter Qualifications Clause, Congress has no power or role in setting voter qualifications.  The only exceptions to this rule deal with specific constitutional amendments that guarantee blacks, women, and persons who are 18 years old the right to vote.

The Framers added the Time, Place, and Manner Clause because they feared that the states might refrain from holding elections in an effort to dissolve the general government.  The propriety of this clause, Hamilton averred in Federalist 59, “rests upon the evidence of this plain proposition, that every government ought to contain in itself the means of its own preservation.”  Hamilton further assured Americans that Congress would only use the Time, Place, and Manner Clause “whenever extraordinary circumstances might render that interposition necessary to its safety.”  Madison, in the Virginia ratifying convention, predicted that so long as the states regularly held elections for federal offices, “congressional control will very probably never be exercised.”

Unquestionably, the EAC form has nothing to do with the times when elections are held, the manner of voting (e.g., via secret ballot or viva voce), or the place where ballots are cast.  Instead, the EAC form regulates the qualification of voters, which is a subject alien to the Time, Place, and Manner Clause.  The citizenship qualification and the necessity of some documentary evidence are matters reserved to the states under the Voter Qualifications Clause.  So long as Arizona requires the proof of citizenship for prospective voters for both federal House races and state house races, there is no constitutional infirmity.

The Court did suggest that Arizona might have another remedy: The state could challenge, under the Administrative Procedures Act (APA), the EAC’s rejection of the proof-of-citizenship requirement.  The EAC has allowed other states to require that additional documentation be attached to the EAC form, and the EAC’s refusal to do the same for Arizona might be actionable.

That remedy is not likely to be effective any time soon.  The EAC currently has no commissioners to rule on an APA case.  House Republicans are working to shut down the EAC as a means of reducing the federal deficit.  Thus, it is unlikely that the agency’s four commissioner slots will be filled in the near future.

In modern America, the idea that the states have the power to set qualifications for voting in federal elections seems beyond the pale.  Despite the unequivocal language of the Voter Qualifications Clause, the Court’s decision in Arizona v. Inter Tribal Council removed one of the last remaining vestiges of state sovereignty found in the Constitution.