The state's power to enforce voting qualifications
There is a great deal of skepticism over yesterday's decision in Arizona v. Inter Tribal Council (PDF). And in fairly thought-provoking pieces from Rick Hasen, Lyle Denniston, Marty Lederman, Joey Fishkin, and Josh Douglas, the positives and negatives are highlighted (with the emphasis on the negatives--that's what legal commentary is best at!).
But I want to draw a distinction between state's power to prescribe voter qualifications and the state's power to enforce voter qualifications. It's an important distinction that, I think, has been largely elided in the discussion, and it's one that is not obvious from the Court's opinion (at least, upon first blush). And, in fact, it's subtly summarized in this statement from the Court (slip op. at 15): "Since the power to establish voting requirements is of little value without the power to enforce those requirements, Arizona is correct that it would raise serious constitutional doubts if a federal statute precluded a State from obtaining the information necessary to enforce its voter qualifications."
Consider, for instance, Crawford v. Marion County Election Board (PDF), which upheld Indiana's voter identification law. The Court emphasized the distinction between prescribing and enforcing voter qualifications: while a poll tax, for instance, was not a legitimate basis to determine who was "qualified" to vote, "evenhanded restrictions that protect the integrity and reliability of the electoral process itself" are permitted (slip op. at 6, internal citation omitted). The Court in Crawford goes on to examine this case as a routine attempt by the state to enforce its existing power to allow only eligible voters to vote.
So perhaps at one level Inter Tribal is simply in line with Crawford (even if it doesn't cite Crawford): there is no dispute that citizenship (like age, residence, sanity, felon status, and other traits subject to some constitutional floors) can be a basis for voter qualifications, but this case is about something other than qualifications. Inter Tribal is about NVRA paperwork; Crawford is about enforcement via voter identification.
But here's the progression I wonder if one can derive from Inter Tribal , and, again, I think, it's somewhat subtle.
1. "Arizona is correct that the Elections Clause empowers Congress to regulate how federal elections are held, but not who may vote in them." (Slip op. at 13.)
2. "Prescribing voting qualifications, therefore, 'forms no part of the power to be conferred upon the national government' by the Elections Clause . . . ." (Slip op. at 14.)
3. "Since the power to establish voting requirements is of little value without the power to enforce those requirements, Arizona is correct that it would raise serious constitutional doubts if a federal statute precluded a State from obtaining the information necessary to enforce its voter qualifications." (Slip op. at 15.)
4. "[T]he statute provides another means by which Arizona may obtain information needed for enforcement." (Slip op. at 15.)
Note that the Court wraps up the power to enforce voter qualifications with the power to prescribe voter qualifications. And while Crawford dealt with a state's power to enforce voter qualifications, the implication in Inter Tribal is that it is outside the scope of the power of the federal government to interfere not just with the state's prescription of voter qualifications--that is its fairly frank statement in n.9 of the opinion and its gloss of Oregon v. Mitchell . It is also that it is outside the scope of the power of the federal government to interfere with the state's enforcement of voter qualifications . Indeed, the only saving mechanism here is that there is "another means" for Arizona to enforce its citizenship requirement, an administrative appeal.
In case you're still not convinced, n.10 is also significant: if a court cannot compel the Election Assistance Commission to act on Arizona's request, "Arizona might then be in a position to assert a constitutional right to demand concrete evidence of citizenship apart from the Federal Form" (emphasis added).
I think the "might" in that sentence is not that there "might" be a constitutional right; instead, it is that Arizona "might" have established, factually, that a "mere oath" will not suffice (slip op. at 17). Consistent with the earlier progression I described, I wonder if the Court now assumes that there is a "constitutional right" of the state to not simply proscribe voter qualifications, but to enforce them absent federal interference.
This is entirely consistent with Justice Thomas's understanding in his dissent (see, e.g., slip op. at 6-8, citing the majority approvingly that "the power to establish voting requirements is of little value without the power to enforce those requirements" and expanding upon it). He has a robust view of that power, too: "Arizona sets citizenship as a qualification to vote,and it wishes to verify citizenship, as it is authorized to do under Article 1, §2. It matters not whether the United States has specified one way in which it believes Arizona might be able to verify citizenship; Arizona has the independent constitutional authority to verify citizenship in the way it deems necessary." (Slip op. at 15.) And, "Given States’ exclusive authority to set voter qualifications and to determine whether those qualifications are met, I would hold that Arizona may request whatever additional information it requires to verify voter eligibility." (Slip op. at 16.)
In the end, we may see a powerful new precedent that would dramatically curtail any federal interference with not just state prescription of voter qualifications, but state enforcement of voter qualifications. But time will tell.