Clearing Up Arizona v. Inter Tribal Council of Arizona

by Charles C. W. Cooke

Those who await such things with bated breath will have noticed that the Supreme Court did not rule this morning on the inflammatory questions of gay marriage, affirmative action, or the Voting Rights Act. Nonetheless, it did issue a 7-2 verdict in Arizona vs. Inter Tribal Council of Arizona a ruling that, SCOTUSBlog’s Lyle Denniston suggested, “might easily be misunderstood if not read very closely.” Predictably, this is exactly what happened: The professional Left — MSNBC, Ezra Klein et al. – was quick to pick this up and imply that the court had found voter identification laws unconstititional; meanwhile, many on the Right complained that the court had blocked attempts to ensure that the vote remains true. “ACORN’s revenge,” Michelle Malkin termed it.

Neither party is correct, and both sides would benefit from looking at the case rather than the headlines. First, this case was about voter registration and not voting itself. Second, and more important, the key issue at hand here was federalism. Primarily, SCOTUS was attempting to define what is the responsibility of the federal government, what is left to the states, and what happens when they clash.

As Denniston explains:

The Constitution divides up the power to determine who will be allowed to vote between state governments and Congress.  The states have the basic power to decide who is eligible to vote but, so far as state laws are aimed at who gets to vote for President or Congress, the Constitution gives Congress a back-up power to change or even to override those state laws.

The Supreme Court on Monday made a significant effort to try to sort out how to divide up this power, in the context of deciding whether a state may require would-be voters to show proof that they are U.S. citizens — both to register and to actually vote.  That proof requirement was challenged by various advocacy groups, because Congress in 1993 had passed a law designed to expand the ranks of voters, and a federal agency acting under that law has specified a form that voters may use to register.

The argument before the Court was that the federal law must control, because Congress had specified that, in filling out a federal form, all would-be voters had to do was to swear they are U.S. citizens, while Arizona went further and required an actual piece of official paper to prove citizenship.   The challengers argued that the two approaches cannot co-exist, so the state proof requirement had to yield.

On the one hand, the Supreme Court agreed that, for now, Arizona’s proof requirement must yield to the federal form’s approach — that is, it is enough to register, using that form, if the would-be voter swears that he satisfies the citizenship requirement.

On the other hand, however, the Court also ruled that Arizona can seek permission from federal officials to impose its proof-of-citizenship requirement.  If it fails with that request, it can go to court and argue that it has a constitutional right to make proof of citizenship a binding requirement for all voters.

Again: The case had very little to do with voter identification, which, this being a statutory rather than constitutional issue, was found neither constitutional nor unconstitutional. Certainly one might agree with Justice Thomas, who argued in his dissent that the federal government has no constitiutional authority over the voters rolls. But that should prompt neither crowing about the defeat of fictional GOP “disenfranchisement” plans, nor hysterical predictions that the ineligible will now steal the 2016 election for the Democrats with judicial approval. Rather than running around pretending that the sky has fallen, conservatives who are vexed by the court’s deciding that, in this case, federal law prempts state law would do well to focus their efforts on changing that federal law.

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