Yes­ter­day, the Supreme Court issued an opin­ion on Ari­zona v. Inter Tribal Coun­cil of Ari­zona. a case I cov­ered in March. The case involved a ques­tion of whether the states can require a reg­is­ter­ing voter to present proof of cit­i­zen­ship in order to reg­is­ter. Fed­eral law requires reg­is­ter­ing vot­ers to sign an affi­davit attest­ing to their cit­i­zen­ship sta­tus. Ari­zona wanted to require reg­is­trants to pro­vide doc­u­men­ta­tion prov­ing their citizenship.

Most of the sto­ries in the news treated the deci­sion as a slap to the state of Ari­zona, in that it pre­vents them from imple­ment­ing the law as writ­ten. But it’s not quite as sim­ple as that.

See, the news media read the begin­ning of Jus­tice Antonin Scalia’s deci­sion, and con­cluded that Ari­zona is pro­hib­ited from requir­ing proof of cit­i­zen­ship. But in fact the deci­sion states that Ari­zona can’t sim­ply uni­lat­er­ally adopt that require­ment. Scalia points out that Ari­zona is free to ask Con­gress to pass a law per­mit­ting states to have such a requirement.

And, even if Con­gress doesn’t oblige, Ari­zona is also free to go to court and argue that they have the right to require proof of cit­i­zen­ship to vote, even if not to reg­is­ter

Ari­zona is cor­rect that the Elec­tions Clause empow­ers Con­gress to reg­u­late how fed­eral elec­tions are held, but not who may vote in them. The Con­sti­tu­tion pre­scribes a straight­for­ward rule for the com­po­si­tion of the fed­eral elec­torate. Arti­cle I, §2, cl. 1, pro­vides that elec­tors in each State for the House of Rep­re­sen­ta­tives “shall have the Qual­i­fi­ca­tions req­ui­site for Elec­tors of the most numer­ous Branch of the State Leg­is­la­ture,” and the Sev­en­teenth Amend­ment adopts the same cri­te­rion for sen­a­to­r­ial elec­tions. Cf. also Art. II, §1, cl. 2 (“Each State shall appoint, in such Man­ner as the Leg­is­la­ture thereof may direct,” pres­i­den­tial elec­tors). One can­not read the Elec­tions Clause as treat­ing implic­itly what these other con­sti­tu­tional pro­vi­sions reg­u­late explicitly.

All of this means that we may well find that this case opens the door to future restric­tions on vot­ing. If that is, indeed, the case, then Scalia will have con­ceded the bat­tle in order to win the war for conservatives.

In the mean­time, Ari­zona is (briefly) chastened.

And, in other news, the Supreme Court also issued a deci­sion on Sali­nas v. Texas, which was cov­ered by dcpet­ter­son in April. In that case, the ques­tion revolved around the Fifth Amendment’s right to remain silent. In a 5–4 deci­sion authored by Jus­tice Samuel Alito, who was joined by the usual con­ser­v­a­tives, plus the swing vote of Jus­tice Anthony Kennedy, the Court ruled that igno­rance of the law does not give a defen­dant a free pass to assert the right to silence sim­ply by being silent. While some­one not in cus­tody is not required to self-​​incriminate, such a per­son must pos­i­tively assert that right to silence, even with­out being informed of hav­ing such a right (since inform­ing comes at the time of arrest).

The deci­sion notes that there isn’t a for­mal process for assert­ing that right, but merely that it requires a pos­i­tive action to make clear that the per­son is assert­ing that right.

I find this a dif­fi­cult argu­ment to keep simul­ta­ne­ous to the argu­ment that resulted from the Miranda v. Ari­zona case that gave us the now-​​famous Miranda warn­ings. Maybe I’m just not cre­ative enough. What do you think?