On Monday, March 18, the Supreme Court heard oral argument in the case of Arizona v. Inter Tribal Council of Arizona. The case epitomizes both the radicalism of the Obama Justice Department and the extremes of the doctrine of federal preemption, under which judges find supposed conflicts between federal and state law, thereby invalidating the latter, often by stretching the intent of federal lawmakers. Further, the case is a challenge to a law that most people regard as a matter of common sense.
Arizona is one of four states that have had the temerity to ask newly registering voters to prove that they are U.S. citizens (the others are Kansas, Georgia, and Alabama). All four adopted their laws in response to a massive and growing problem — the presence of huge numbers of aliens on states’ voter rolls across the country. In some states, such as Colorado and Florida, the relevant officials have recently estimated the number of enfranchised aliens in the thousands. The problem is especially troublesome because, once an alien gets on the voter rolls, it is extremely difficult to identify him as an alien and take him off. The aliens that have been discovered and removed have typically been identified by comparing a state’s voter rolls with its driver’s license database, because most driver’s license databases now identify which drivers are aliens. However, that only allows a state to identify a subset of aliens residing in the state — the ones who decide to apply for a driver’s license. The rest are nearly impossible to detect.
The only real way to solve the problem is at the front end. If a state asks voters at the time of registration to provide proof of citizenship — a birth certificate, a passport, a naturalization document, or even a driver’s license number (in states such as Arizona that mark aliens on their driver’s license records) — then the state can ensure that only U.S. citizens get on the voter rolls in the first place. Otherwise, the system is based entirely on trust: The registering voter merely checks a box indicating that he’s a citizen on the registration form and signs it affirming that he’s telling the truth. But in an era of organizations (e.g., ACORN) that treat voting laws as inconvenient obstacles on the path to electoral victory, trust alone is not enough. Arizona and the other three states have taken President Reagan’s famous approach to dealing with the Soviets: “Trust, but verify.”
The plaintiffs and the Justice Department have argued that the 1993 National Voter Registration Act (NVRA), a.k.a. the “Motor Voter Act,” doesn’t allow states to verify the citizenship of their voters. Forget that Congress never clearly stated such an intent when passing the law. Indeed, the relevant congressional committee reported that it was “particularly interested in ensuring that election officials continue to make determinations as to applicants’ eligibility such as citizenship as they’re made under current law and practice.” The plaintiffs’ argument twists a provision buried in the NVRA that says states may use their own voter-registration forms to register voters, but states must also “accept and use” a to-be-created federal form for registering voters, which was subsequently created by the Election Assistance Commission (EAC). The EAC’s form, however, doesn’t ask for proof of citizenship. Thus the plaintiffs argue, asking the voter to provide such evidence alongside the federal form would be doing something more than “accepting and using” it. So, the argument concludes, Congress really meant to say “accept and use the federal form and require nothing else with it,” preventing states from requiring proof of citizenship.
Sound like hogwash? That’s because it is — especially when Congress also stated in the NVRA that states are responsible for determining the eligibility of each applicant to vote. That means determining whether the applicant lives in the state, whether he is of voting age, and yes, whether or not he is a United States citizen.
The oral argument on Monday indicated that, unfortunately, the four liberal activists on the Court are likely to vote to strike down the Arizona law, accepting the plaintiffs’ claim that Congress wanted the states to build their voter-registration systems on the simple assertion by voters that they are U.S. citizens.
Justices Scalia, Roberts, and Alito each systematically picked apart the arguments of the plaintiffs and the Obama administration, suggesting that all three are leaning Arizona’s way. Usually silent Justice Thomas is presumably with them — particularly since he, more than any other justice, believes that preemption doctrine has grown into a judicially driven juggernaut that tramples the autonomy of the states.
As for Kennedy, his questions initially suggested that he finds the basic argument of the plaintiffs to be a plausible reading of the NVRA. On the other hand, he later stated that the Ninth Circuit’s decision against Arizona “ignores the proposition that the state has a very strong and vital interest in the integrity of its elections.” So the oral argument leaves us with a familiar question: What will Justice Kennedy do?
The answer to that question now will have enormous national implications. Our country has tens of thousands, if not hundreds of thousands, of aliens on the voter rolls in the various states. Every time an alien votes, that vote cancels out the legitimate vote of a U.S. citizen. Alien votes effectively disenfranchise U.S. citizens, and states must have the ability to stop this from happening. It is implausible that Congress in 1993 intended to deprive them of this basic ability to protect the integrity of elections. But for now, all we know is that Justice Kennedy will likely decide the matter.
— Kris W. Kobach, the secretary of state of Kansas, is a co-author of Arizona’s S.B. 1070 and Alabama’s H.B. 56 and has defended numerous state and local laws concerning illegal immigration in court. He filed an amicus brief on Arizona’s side in Arizona v. Inter Tribal Council of Arizona.