Did Scalia add ‘virus’ to Arizona voting opinion?

Updated
File Photo: People line up to vote at the Albright United Methodist Church November 4, 2008 in Phoenix, Arizona.
File Photo: People line up to vote at the Albright United Methodist Church November 4, 2008 in Phoenix, Arizona.
Mark Wilson/Getty Images, File

A Supreme Court decision Monday that struck down an Arizona law requiring people to provide proof of citizenship when registering to vote was hailed by voting-rights advocates as a big win. But several legal scholars say the ruling, written by Justice Antonin Scalia, could in fact set back the voting-rights cause in cases to come.

As Spencer Overton, a law professor at George Washington University writing in The Huffington Post, put it, Scalia “may have implanted today’s opinion with a virus that may hamper federal voting protections in the future.”

In his opinion, Scalia found that the Constitution’s “Elections Clause” gives Congress the authority to set the “times, places, and manner” for holding congressional elections. As a result, Scalia ruled, Arizona’s law, known as Proposition 200, is pre-empted by the federal National Voter Registration Act, which requires states to accept a federal form that makes people attest under penalty of perjury that they’re citizens, but doesn’t make them show proof.

So far so good for voting rights. But Scalia also ruled—and six other justices agreed—that the Elections Clause does not give Congress the power to set voter qualifications. The clause, Scalia wrote, “empowers Congress to regulate how federal elections are held, but not who may vote in them” (emphasis in original). Whether Congress or the states had that authority had long been an unresolved question in election law. No longer.

Because it has been the states that have generally sought to impose restrictions on voting, and the federal government that has fought those restrictions—not just recently, but ever since Reconstruction—experts say the court’s decision could end up undermining voting rights.

“The court’s view of the ‘qualifications’ clause may give states new powers to resist federal government control over elections,” Rick Hasen, a law professor at the University of California, Irvine, and a prominent election-law expert, wrote at The Daily Beast.

Of course, exactly what counts as a voting “qualification” remains to be defined by future rulings. But Marty Lederman, a law professor at Georgetown, told msnbc that the ruling could threaten a range of existing or potential federal laws and court rulings aimed at protecting voting rights—“anything where Congress wanted to expand the franchise to people who states might exclude,” Lederman said.

Among them, Lederman wrote at SCOTUSblog Monday: a law requiring states to register U.S. citizens living overseas, and a potential federal ban on state laws that disenfranchise felons.

Overton even raised the possibility that states could now claim that owning a photo ID is a qualification, making it easier for them to institute voter ID laws—though Lederman told msnbc that the argument appears dubious.

Indeed, the finding that states have authority over voter qualifications even allowed Scalia to lay out a plan for how Arizona could get Prop 200 approved—by suing the federal Election Assistance Commission (EAC) to get it to change the federal form to include a proof of citizenship requirement. Sure enough, Arizona Attorney General Tom Horne jumped on that piece of the ruling, issuing a statement Monday indicating that he intends to do just what Scalia suggested.

To be sure, some voting-rights advocates say they’re not worried. Jon Greenbaum, the chief counsel for the Lawyers Committee for  Civil Rights Under Law, told msnbc that a finding that states did not have the right to set voter qualifications would have been extraordinary. And he dismissed the significance of Scalia’s suggestion that Arizona try to get the EAC to change the form, saying that the justice was merely noting a legal option open to the state, not requiring that the EAC or the courts agree with Arizona. The fact that the court’s four liberal justices signed onto the opinion, Greenbaum said, supported his view.

And the ruling’s long-term implications aren’t all bad for voting rights. In areas other than voter qualifications, the opinion took a broad view of Congress’s authority under the Elections Clause—including with respect to voter registration. “[T]he Court thus has now affirmed a broad (albeit not unlimited) power of Congress to ensure effective voter registration for federal elections,” wrote Lederman. “That is no small thing.”

Indeed, many nonpartisan election experts say questions of voter registration ultimately affect a far larger number of people than do the more hot-button political disputes over issues like voter ID. That’s in part because most state voter registration systems don’t do enough to register new voters and to track voters when they move, leaving significant numbers of voters unregistered at their current addresses. So if the court’s ruling ends up increasing the federal government’s ability to force states to make changes to their systems—an issue that President Obama’s election commission may take up—it could potentially end up helping to expand voting opportunities.

In other words, the ruling appears to be a mixed bag, and the ultimate implications won’t be clear for some time. “The opinion raised as many questions as it answered,” said Lederman. “I hesitate to predict where this is going.”

Did Scalia add 'virus' to Arizona voting opinion?

Updated