- The Washington Times - Monday, June 17, 2013

The Supreme Court ruled Monday that the federal government can pre-empt a state and require that it use a national voter registration form, in a decision that punctured part of Arizona’s far-reaching voter-check laws.

In their 7-2 ruling, the justices struck a blow for federal supremacy over the states. The majority held that though the Constitution gives states the power to decide who qualifies to vote, the Founding Fathers wanted Congress to control the “times, places and manner” of federal elections — which in this case includes how states register voters.

The complex ruling still allows officials to demand proof of citizenship when voters apply using Arizona’s own state form, and said states can reject applicants who they believe don’t qualify. But those who use the federal form cannot be rejected just because they refuse to submit proof of citizenship.

“States retain the flexibility to design and use their own registration forms, but the federal form provides a backstop: No matter what procedural hurdles a state’s own form imposes, the federal form guarantees that a simple means of registering to vote in federal elections will be available,” Justice Antonin Scalia wrote for the court’s majority.

Chief Justice John G. Roberts Jr., the court’s four liberal-leaning justices, and swing-vote Justice Anthony M. Kennedy all backed Justice Scalia’s findings, while Justices Clarence Thomas and Samuel Anthony Alito Jr. dissented.

Justice Alito said that allowing two competing ways to register is a “nonsensical result.”

“What is a state to do if it has reason to doubt an applicant’s eligibility but cannot be sure that the applicant is ineligible?” he wrote.

The ruling is likely to be limited in its effects, but it already has ignited a political firestorm.

Sen. Ted Cruz, Texas Republican, said he has written an amendment that he will try to attach to the immigration bill on the Senate floor that would let states check voters’ citizenship. Sen. David Vitter, Louisiana Republican, introduced an amendment Monday that would make it an aggravated felony for an illegal immigrant to vote.

But voting rights groups cheered the ruling, saying more than 30,000 would-be voters had applied using the federal form and had their applications rejected over the past two years.

“Voters scored a huge victory today,” said Wendy Weiser, an official with the Brennan Center for Justice. “We applaud the Supreme Court for confirming Congress‘ power to protect the right to vote in federal elections.”

Still, the groups were not sure what to do about Arizona’s state form, which the court ruled is also legal.

The constitutional question facing justices was whether Congress‘ power to control the manner of elections meant it can impose terms on states in the technical areas of voter registration.

Justice Scalia’s ruling confirmed that.

A top congressional Republican said the ruling should be a warning to Congress to be careful about abusing that pre-emptive power.

“Unfortunately, today’s decision highlights bureaucratic government overreach, and Arizona is the victim,” said Rep. Candice S. Miller, Michigan Republican and chairwoman of the committee that oversees election laws in the House.

Earlier this month, her committee voted to scrap the Election Assistance Commission, the federal election panel Congress empowered to decide what the federal voter registration form should include.

The Arizona case is just one of the voting rights cases before the court this month.

The justices also are expected to rule on a case that challenges whether states with a history of racial discrimination in voting still need to get federal approval before changing their voting laws.

Monday’s decision creates a patchwork for Arizona.

On one hand, the state must accept applications using the federal form, but it also can accept its own forms that still require proof of citizenship.

Justice Alito, dissenting from the ruling, said that leaves all sorts of thorny questions.

“Thus, under the court’s approach, whether someone can register to vote in Arizona without providing proof of citizenship will depend on the happenstance of which of two alternative forms the applicant completes. That could not possibly be what Congress intended,” he wrote.

The ruling marks another instance in which Arizona pushed the limits of state authority and got the federal courts involved.

Last year, the Supreme Court overturned part of the state’s immigration law that made being in the U.S. illegally a state crime, though the court has allowed the state to require police to check the immigration status of those they encounter during their duties. The court earlier upheld another Arizona law that requires businesses to check the legal status of workers.

In this instance, Arizona has long required voters to be citizens, but the state went further in 2004 when voters approved a referendum requiring new applicants to show proof of citizenship when they try to register to vote.

However, after the 2000 election fiasco in Florida, Congress created the Election Assistance Commission and gave it the power to decide what questions states can ask on their registration forms.

The commission rejected Arizona’s effort to include proof of citizenship.

Justice Scalia said Arizona can go back to the commission and go through the formal process of pressing it to include citizenship.

But Justice Alito pointed out that the commission is moribund, with all four of its slots vacant, “and there is no reason to believe that it will be restored to life in the near future.”

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