On Monday of this week the U.S. Supreme Court handed down Arizona v. Inter Tribal Council of Arizona, Inc., in which the Court held that the State of Arizona could not require proof of citizenship when someone registers to vote. Actually, the ruling was not that broad. It actually said that Arizona cannot alter the Federal form prepared by the Federal Election Assistance Commission (EAC) which merely requires a person to affirm that they are a U.S. citizen. The affirmation is all the proof required by the Federal form.
Conventional wisdom was that this case represents a significant victory for the Left who want to continue their near universal practice of promoting voter fraud in as many elections as possible, tacitly admitting they cannot win if honest elections are held. What easier way for non-citizens to vote illegally if all they have to do is lie on the voter registration form and cannot be compelled to provide proof of citizenship?
Voices on the Left are not so certain they really won this case. The majority opinion was written by Justice Scalia, ordinarily not in the business of handing judicial victories to Leftists. What’s makes this confusing, though, is that the four liberals on the court, Sotomayer, Ginsburg, Breyer, and Kagan joined in Scalia’s opinion. If they were on board, how could the case not be victory for the Left?
Also, what is Scalia doing in that crowd, and what are the libs doing on the same side as Scalia, and in an opinion that he authored? Kennedy, the swing vote but more likely to vote with the Conservatives it seems, also joined with Scalia. Alito dissented, joined by Thomas and Roberts. Now it’s really confusing. Three conservatives dissent, and all four liberals are in the majority, but it’s not a victory for the Left? Hold on, this is all understandable. I think.
The low-information Left may think they have scored a victory, but the scholarly voices on the Left are surprised and upset.
Here is Rick Hasen writing at the Left-leaning Election Law Blog:
Yesterday’s opinion in Arizona v. Inter-Tribal Council is full of time bombs from Justice Scalia. Not only does he explain how Arizona might go to court to get an order compelling the FEC to alter the federal form to conform with the state’s citizenship requirements, he also draws a broad distinction between federal power to set the manner of elections and its lack of power to prescribe voter qualifications. (This was the main point of my Daily Beast piece yesterday, as well as Marty Lederman’s SCOTUSBlog post and much in line with Lyle Denniston’s analysis.)
[Justice Scalia’s exact words in the opinion: “Arizona is correct that the Elections Clause empowers Congress to regulate how federal elections are held, but not who may vote in them.”]
Mr. Hasen continues:
… this is scary stuff for those who worry about some states cutting back on voting rights. So the mystery to me is: why would the liberals on the Court go along with all this? Why not just join Justice Scalia’s opinion in part? After all, as a former clerk to Justice O’Connor emailed me, it looks like Justice Scalia is trying to provide a roadmap for states to implement voter id laws over federal objection. [emphasis added]
Oh, oh. Voter ID laws okayed over Federal objection? Nothing scares the Left like voter ID laws. There can be no real objection to voter ID laws since a government photo ID can be had easily in every state and nearly everyone has one because it is nearly impossible to function in the world today without one. Requiring voters to show a photo ID to verify their identity makes voter fraud more difficult, and that’s the sole reason the Left is against it.
There are also strong voices on the right saying Scalia’s opinion is a Big loss for the Left. Election law expert J. Christian Adams points out five things the Left hoped to establish in this case:
● Invalidation of Arizona’s requirement that those submitting a federal form provide proof of citizenship with their federal form. Mind you, the citizenship-proof requirement is NOT part of federal law and the Election Assistance Commission does NOT require it in the form they drafted.
● Invalidation of state citizenship-verification requirements when a state voter registration form is used (yes, such forms exist separate from the federal requirement) on the basis of federal preemption. They wanted the Arizona case to invalidate all state citizenship-verification requirements.
● Automatic registration if a registrant submits a completed federal EAC approved registration form, no questions asked.
● Federal preemption on the ability for states to have customized federal EAC-approved forms that differed from the default EAC form.
● Federal preemption over states, like Florida and Kansas, looking for independent information on citizenship to root out noncitizens from the voter rolls. Again, the Left wanted the federal EAC form to be the no-questions-asked ticket to the voter rolls.
Scalia’s opinion gave only the first point to the Left, and J. Christian Adams says this is the most insignificant one because Arizona can still try to convince the EAC to amend the Federal form to require proof of citizenship, or it can use its own state form of voter registration. Advocates of integrity in voting won the remaining four issues. That represents and 80% victory for voting integrity, and only a 20% victory for the Left.
Rick Hasen has every right to be puzzled as to why Ginsburg, Sotomayor, Breyer and Kagan didn’t write their own separately concurring opinion. Heh. Let the Left gaze on their belly buttons trying to figure that one out.
The decision today uncorks state power. The Left wanted state power stripped and they lost. This was the whole ballgame to the groups pushing the Arizona lawsuit. They lost, period.