Gift or Gotcha: What to Make of Scalia's Arizona Opinion

On Monday -- just over twenty years to the day that President Bill Clinton signed the National Voter Registration Act (affectionately known as "Motor Voter Law") into law -- the Supreme Court ruled that Arizona's attempt to tack a proof-of-citizenship requirement onto the federal voter registration form was in violation of the Act. Given Arizona's racial and ethnic demographics, the burden of this requirement fell heavily upon the state's Latino and Native American voters. However, Arizona residents were given a reprieve -- at least for now -- by Justice Antonin Scalia, one of the Court's staunchest conservatives, who authored the opinion in Arizona v. Inter Tribal Council of Arizona, Inc.

The Court's opinion raises the profile of a powerful but inconspicuous provision of the constitution: The Elections Clause (Article 1, Section 4). The Elections Clause gives Congress the power to alter by regulation any state law affecting the "times, places, and manner" of elections. Justice Scalia poignantly noted Congress's paramount, pre-emptive power under the Elections Clause supersedes any state regulation concerning the conduct of elections. It is by this authority that Congress enacted the Motor Voter law to "increase the number of eligible citizens who register to vote in elections for Federal office." As a result, Arizona is required to "accept and use" the federal mail-in form as a complete registration method, unless a federal agency, the Election Assistance Commission, permits Arizona to include additional requirements on the form.

Some have cautioned, however, that the opinion the Court issued on Monday is a Trojan horse, bearing the gift of heightened Elections Clause power in one hand and neutered congressional protection of the right to vote in the other. This concern is legitimate and stems from the majority's statement that "the Elections Clause empowers Congress to regulate how federal elections are held, but not who may vote in them." Indeed, the Court emphasized that states, not Congress, have the constitutional authority to determine voter qualifications.

An alternative, more sanguine view, however, is that the Court has articulated a broad interpretation of congressional authority under the Elections Clause that includes actions that encompass voter qualifications. The majority is not necessarily duplicitous here. Rather, the Court may be tacitly recognizing something that voting rights advocates have known all along -- nearly every election law impacts who participates in a democracy and the quality of that participation.

So, while Scalia's majority opinion reminds us of state's authority to set voting qualifications within the bounds of the constitution, it also embraces an expansive conception of congressional authority in elections.

Future litigation relying on the Elections Clause to protect voting rights now has clear guidance concerning the power of Congress to pre-empt state law. This authority includes time, place, and, apparently, all manner of restrictions on voter registration, including those that bear upon voting qualifications such as citizenship requirements; residency requirements for students and other transitory voters; and voting rights restoration for formerly incarcerated citizens. Indeed, in an age of expanding constraints on registration and voting that include voter ID laws, limited early voting, and curtailed registration drives, Scalia's unexpected warmth toward the Elections Clause just might be the gift that keeps on giving.