The Scalia Court and Voting Rights, Part 2
By Doug Kendall and Ryan Woo
With Justice Antonin Scalia's controversial statement that the Voting Rights Act represents the "perpetuation of racial entitlement" continuing to reverberate across the media landscape, it's hard to believe that the Supreme Court is poised to hear another seminal challenge to a federal law protecting Americans' right to vote.
But next Monday, the Court will hear Arizona v. Inter Tribal Council of Arizona, a challenge by the state of Arizona to the protections of the National Voter Registration Act (NVRA). The NVRA, also known as the Motor Voter Act, was enacted in 1993 with the goal of boosting voter participation and streamlining voter registration.
At stake in both the challenge to the Voting Rights Act in Shelby County v. Holder, and the challenge to the NVRA in the Arizona case, is whether the federal government will continue to have the power to beat back efforts by the states to suppress the vote. As anyone who was watching the 2012 elections knows, one of the key voter suppression methods employed by conservatives was the enactment of ever more burdensome voter ID laws. Those laws were an issue in Shelby County because the Voting Rights Act was used in 2012 to block or delay the implementation of voter ID laws in Texas and South Carolina.
The Arizona v. Inter Tribal Council case involves a variation of the polling place ID laws that dominated the news during the 2012 election cycle. In 2004, Arizona made a brazen attempt to add to the voter registration criteria established by the National Voter Registration Act. While the NVRA simply requires registrants to sign a sworn affidavit (under penalty of perjury) attesting to their citizenship status, Arizona attempted to add a more stringent condition by requiring all registrants to present hard copies of documents proving their citizenship.
If upheld, Arizona's challenge would likely set off a whole new wave of fights over copycat bills in states across the country. And while Shelby County and Arizona v. Inter Tribal Council involve different statutes and different legal challenges, they raise the same core constitutional issue: the role of the federal government vis-à-vis the states in terms of voting rights in America. As Constitutional Accountability Center's briefs in Shelby County and Arizona v. Inter Tribal Council show, the Constitution unambiguously supports the federal government in both these cases.
In the case of Shelby County, Section 2 of the Fifteenth Amendment explicitly grants Congress (not the Supreme Court, and certainly not the states) the power to craft "appropriate legislation" to enforce the Amendment's guarantee of voting free from racial discrimination. The Voting Rights Act is a quintessential example of "appropriate legislation" and, as 2012 showed us, its protections are still necessary today.
In Arizona v. Inter Tribal Council, the Constitution provides a similarly clear answer. The Elections Clause of the Constitution (Article I, Section 4) grants Congress the power to "at any time by Law make or alter" state election regulations -- including, of course, state voter registration laws. Therefore, while the Elections Clause provides an important role for states to establish time, place, and manner rules for federal elections, the Clause even more clearly gives the federal government a veto over these laws and the ability to establish nationwide standards on topics such as voter registration.
Which brings us back to Justice Scalia's comments in Shelby County ...
While his labeling of the Voting Rights Act as the "perpetuation of racial entitlement" has dominated the Shelby County news, Justice Scalia's argument that the reauthorization of the VRA was "not the kind of a question that you can leave to Congress," is, if anything, even more troubling. It reflects a breathtaking disregard for both the Constitution and the will of our democratically elected Congress.
The efforts by state officials around the country to suppress the vote in the lead-up to the 2012 election were an outrage. But what's happening in the Supreme Court in 2013 could end up being even more significant because the issue is not just whether the states can try to suppress the vote, it's whether the federal government can prevent this from happening.
Doug Kendall is President and Founder of Constitutional Accountability Center, a public interest law firm, think tank and action center, where Ryan Woo is a Research Associate.