This Time, Scalia Doesn’t Want to See Your Papers

The Supreme Court declares Arizona’s voter registration law unconstitutional.

Tucson Police Officer Angel Ramirez arrests a man for trespassing May 29, 2010 in Tucson, Arizona.

Tucson Police Officer Angel Ramirez arrests a man for trespassing on May 29, 2010, in Tucson, Ariz.

Photo by Scott Olson/Getty Images

By a surprising 7 to 2 majority, the Supreme Court on Monday struck down a bristly little ballot initiative that Arizona passed in 2004, requiring everyone who registers to vote to prove his or her citizenship. Justice Antonin Scalia wrote the majority opinion, and he had everyone on board except Justice Clarence Thomas and Justice Samuel Alito. Voter ID laws, including this one about voter registration from Arizona, are all about partisan politics. They pit Republicans who say they’re worried about voter fraud against Democrats who want to make it easier, not harder, for people to vote. These state-driven initiatives are especially bad for minority voters, and the young, poor, or disabled—groups that tend to stay off the rolls in larger numbers when there are more hoops to jump through. 

And so it’s heartening to see seven justices join hands today. They stood behind a simple federal form for voter registration and tossed out Arizona’s more burdensome alternative.  In other words, they made it easier for people to vote and sided with federal over state power. At his next Federalist Society event, Scalia will have some explaining to do.

In 1993 Congress passed the National Voter Registration Act, which created a federal form for voter registration. It’s pretty simple: To prove your citizenship, you just have to swear to it. Voters in Arizona, along with three other states, found this shockingly loosey-goosey. In part to combat voter fraud, they passed a ballot initiative in 2004 requiring someone who wanted to register to vote to provide a copy of a passport, birth certificate, driver’s license number (if the license verifies your citizenship), or other evidence of naturalization or membership in an Indian tribe.

It turns out that there have been only two cases since 2000 in Arizona in which non-citizens tried to cast votes. In other words, there’s almost no real voter fraud to fight. But that’s not what the Supreme Court focused on. The decision is all about what Congress meant when it instructed the states to “accept and use” the federal voter registration form created by the NVRA, and whether it had the power to boss Arizona around in the first place. The answer to the second question, Scalia says for the court, is yes. He begins where he must, with the Constitution:

“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 Senators.”

So the states get to make the rules, and then Congress gets to remake them. Scalia says this was the framers’ way of making sure that the states wouldn’t refuse to provide for elections to the U.S. House of Representatives.  Apparently “widespread vociferous opposition to the proposed Constitution” made this a live possibility back in the day. (Now, of course, we like to elect our own representatives to the House and wish that everyone else’s would stay home.)

Scalia says, quoting an 1880 case, that the power of Congress to make the rules for federal elections “is paramount.” Since Congress knows this, it has more power to push aside state law in this area than it usually has—in lawyerspeak, more power to pre-empt state laws. Justice Anthony Kennedy doesn’t go for this part of Scalia’s reasoning: He agreed with the result today, but he wrote separately to say that he doesn’t like the idea of “lightly” negating “the States’ otherwise proper exercise of their sovereign power.” The two dissenters are also unhappy about how the majority is treating the states. Thomas points out that the states have the “exclusive authority to set voter qualifications.” Alito says that the court “brushes aside the constitutional authority of the States and produces truly strange results.”

But they lost. In the majority’s view, since Congress has the power to remake the rules, it can order the states to “accept and use” the NVRA’s voter registration use, and that means Arizona can’t then add on its own proof-of-citizenship requirement when people submit the NVRA form. (University of California, Irvine, law professor and Slate contributor Rick Hasen just explained to me that the state can still require proof of citizenship on its own registration form, however. It just can’t stop people from using the federal form, as is, in voter registration drives.)

OK, all good—except for one thing: Thomas is right that the states get to decide who may vote in federal elections. This state authority lies in another part of the Constitution. (For House elections, look in Article I. For Senate elections, it’s in the 17th Amendment.) Doesn’t that mean Arizona can in fact require aspiring voters to be citizens, as it has since becoming a state in 1912?

Here is the neat answer Scalia comes up with to that question: Yes, Arizona can require proof of citizenship to register to vote—the state just can’t do it by passing a law superseding the federal form. Instead, Arizona has to go to the federal Election Assistance Commission to ask for a change to the federal form, so that it will include all the information the state says is needed to decide voter eligibility. If the EAC turns Arizona down, the state can sue. Arizona hasn’t done this yet, but the court says the state still could. Never mind, as Alito points out, that the EAC has no actual commissioners at the moment. Arizona still has to try to compel the agency to act.

At this point in the opinion, we are in the subterrain of footnotes. Let’s go back aboveground and survey the landscape of voter ID laws more broadly. Alabama, Georgia and Kansas have laws just like Arizona’s. So those state laws also get thrown onto the garbage heap. And actually, it’s becoming something of a pile. Since 2003, courts have either thrown out or delayed photo ID requirements in at least five states. The politics, too, are finally starting to shift away from the trumped-up GOP drive against voter fraud. In Minnesota, voters for the first time rejected a voter ID law in 2012. Semi-related: In Florida, after an uproar about the long lines and wait times last November, the state restored early voting days that had been cut. And in Wisconsin, Republican Gov. Scott Walker recently gave up his push to get rid of same-day voter registration. As Jonathan Alter points out in his new book, The Center Holds, voter ID and other impediments led to a backlash against Republicans in 2012, energizing minority voters to go to the polls in the key states of Pennsylvania, Ohio, Virginia, and Florida.

Hasen cautions against getting too giddy, however. “It’s a mixed bag,” he says of the current state of make-it-harder-to-vote laws. A lot of the voter ID laws that spruced up versions of the voter ID laws that were on hold in the last election will probably be enforced next time around, including in Pennsylvania, Texas, and Wisconsin. Take a look at this handy map and you’ll see that 11 states require photo ID to vote, and 19 states impose other kinds of requirements. Monday’s Supreme Court ruling doesn’t change any of that. It knocks down four states’ extra requirements for one form of voter registration. But to actually show up and cast a ballot, in a lot of places, you still have to prove who you are.