Quick thoughts on Arizona v. Inter Tribal Council

The Supreme Court handed down its decision in Arizona v. Inter Tribal Council of Arizona, Inc. today. By a vote of 7-2, the Court, in an opinion authored by Justice Scalia, struck down Arizona's proof-of-citizenship requirement as conflicting with the National Voter Registration Act of 1993. Justice Scalia wrote for the majority, joined by Chief Justice Roberts and Justices Ginsburg, Breyer, Sotomayor, and Kagan. Justice Kennedy concurred in part and concurred in the judgment. Justices Thomas and Alito each filed dissenting opinions. Here are a few quick thoughts after reading the opinion.

  • The opinion at II.A has a very robust view of the Elections Clause, and what Congress may regulate when it comes to  "Times, Places and Manner." I don't know that it will save, say, the Voting Rights Act from a facial challenge, but it's worth noting that a solid majority of the Court views Congress's role in this area as fairly broad.
  • Justice Scalia's majority opinion takes the opportunity (slip op. at 10-12) to address the "presumption against pre-emption," which the opinion characterizes as "sometimes invoked in our Supremacy Clause cases." The majority notes, "We have never mentioned such a principle in our Elections Clause cases." Accordingly, the majority rejects such a presumption in such cases because of the "different[]" power of the Elections Clause, a power that confers "none other than the power to pre-empt," and that the "federalism concerns underlying the presumption . . . are somewhat weaker here."
    This part of the opinion garners 6 votes, as Justice Kennedy concurs separately to express disapproval of the Court's rejection of the presumption. He doesn't view the Elections Clause as unique and wants greater vigilance in protecting the states. He emphasizes that "a court must not lightly infer a congressional directive to negate the States' otherwise proper exercise of their sovereign power."
    Of note is that Kennedy expresses a fairly robust view of federalism in ttis concurrence. Also of note is that, perhaps, Justice Scalia disapproves more broadly of the "presumption" against pre-emption, and he viewed this case, because of a distinguishable clause of the Constitution addressed for the first time (as he characterized it), as an opportunity halt the expansion of that presumption.
  • Justice Thomas's dissent views this matter as primarily one of constitutional qualifications. That power is reserved to the states, and he marches through a broad section of founding documents and history to emphasize this point. As Arizona has the power to decide whether citizens have the right to vote, then Arizona should have the power to enforce that decision. The majority opinion largely shies away from addressing Justice Thomas's views head-on, instead addressing, in general in Part III and specifically at n.9, that the statute does not preclude Arizona from enforcing the qualifications of its voters, but simply that the means chosen cannot be used because of the conflict with the Act.
  • The majority, however, does emphasize that the matter of prescribing voting qualifications is left to the states. The opinion at n.8 brings clarity to Oregon v. Mitchell, a fractured opinion about Congress's power to compel states to allow 18-year-olds to vote. It notes that a majority of the Court in that case "took the position that the Elections Clause did not confer upon Congress the power to regulate voter qualifications in federal elections."
  • Justice Alito's dissent attempts to avoid the harder constitutional questions by construing the Act in a more narrow fashion. Preemption aside, the "better reading of the Act would be that Arizona is free to require those who use the federal form to supplement their applications with proof of citizenship." (Slip op. at 7.)
  • Finally, after 13 long years languishing in the U.S. Reports, Bush v. Gore , 531 U.S. 98 (2000) (per curiam) gets its first citation in the Supreme Court. Justice Thomas cites the case in n.2 of his dissent. He notes that the Act applies to "all federal elections, even presidential elections," and the problems of Congress regulating state selection of presidential electors when that power is "plenary," citing Bush v. Gore. It will probably be underdiscussed, but there's now a citation for Bush v. Gore in the Supreme Court.