Supreme Court Watch: Voter Registration Edition
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?
- Scalia, Supremes reject Arizona voter suppression attempt
- Details: Arizona v. Inter Tribal Council of Arizona, Inc.
- SCOTUS says states can’t require proof of citizenship to register voters
- Justices: Arizona voter registration rules go too far
- Opinion recap: One hand giveth.…
- Court Strikes Arizona’s Proof-of-Citizenship Requirement
- Supreme Court: Federal election law trumps Arizona’s proof-of-citizenship mandate
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