New Voter ID Case at the Supreme Court: A Case for Preemption
Michael Ramsey
Regular readers are likely aware that I'm not sympathetic to federal preemption claims and that I think modern preemption analysis is far afield from the narrow view of preemption contained in the text of Article VI. (See here, here and here, for example). So I thought it would be worth while to note a contested preemption case where I think the national law should displace state law (albeit one where the Supreme Court may decide the other way).
On Monday the Court granted cert. in Arizona v. Inter Tribal Council of Arizona, Inc., a voter identification case. (Analysis from Lyle Denniston at SCOTUSBlog here). Arizona law requires persons registering to vote to show specified proof of U.S. citizenship. The National Voter Registration Act (NVRA), a federal law, creates a form that people may use to register to vote in elections for federal offices and which the states must accept for voter registration (states can create their own forms as well, but they must allow registration using the federal form if the voter uses it). The NVRA form does not require proof of citizenship aside from a statement under oath. Question: may Arizona require people registering using the federal form to provide proof of U.S. citizenship?
The Ninth Circuit said no, and I agree. The NVRA requires that states “accept[] and us[e]” the federal form “for the registration of voters in elections for Federal office.” However, under Arizona law, Arizona refuses to "accept and use" the federal form for registration of persons who do not also comply with a state-imposed requirement. That is precisely the situation for which Article VI's supremacy clause was designed: a person with a right under federal law (here, to register using the federal form) is being barred from exercising that right by an additional hurdle created by state law. True, as Arizona argues, the NVRA does not expressly say that additional state laws are preempted, but that is the obvious implication of the requirement that states shall accept the federal form. Accepting the federal form in this context means accepting it without additional qualifications. Arizona wants to able to reject (that is, not accept) some registrations submitted on federal forms. That is exactly what the NVRA says Arizona can't do when it says the states must "accept" registrations on federal forms.
Nothing in Article VI requires that Congress expressly declare state laws preempted. Article VI says that federal law is supreme. Here, when a voter submits a federal form registration without proof of citizenship, there is a conflict between what the NRVA says Arizona must do (accept it) and what Arizona wants to do (reject it). The supreme law prevails. That should be the end of the story.
So why is the case going to the Supreme Court? Perhaps unwisely, the Ninth Circuit thought the case more complicated. Rather than using ordinary Article VI preemption analysis (which I think leads easily to its result), the circuit (en banc) decided that it would instead apply a more pro-preemption analysis it purported to derive from the elections clause (Article 1, Section 4), which provides: "The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislatures thereof; but the Congress may at any time by Law make or alter such Regulations..."
Here is the core of the court's analysis:
In contrast to the Supremacy Clause, which addresses preemption in areas within the states' historic police powers, the Elections Clause affects only an area in which the states have no inherent or reserved power: the regulation of federal elections. As the Supreme Court has explained, because federal elections did not exist prior to the formation of the federal government, the states' sole authority to regulate such elections "aris[es] from the Constitution itself." [Citing U.S. Term Limits v. Thornton] Because states have no reserved authority over the domain of federal elections, courts deciding issues raised under the Elections Clause need not be concerned with preserving a "delicate balance" between competing sovereigns. Instead, the Elections Clause, as a standalone preemption provision, establishes its own balance. For this reason, the "presumption against preemption" and "plain statement rule" that guide Supremacy Clause analysis are not transferable to the Elections Clause context. [p. 4 of the opinion]
I'm unpersuaded. Article I, Section 4 gives Congress a power -- to "make or alter" regulations relating to federal elections. Whether an exercise of that power displaces an otherwise-valid state law on a similar subject requires us to consider what causes a state law to be displaced. The answer to that question is found in Article VI: the federal law is "supreme" so in case of conflict it prevails; absent a conflict, there isn't a constitutional basis for displacing the state law. The idea of states' "inherent or reserved powers" in this context is, I think, a red herring. The power of the states to regulate federal elections is plainly granted in Article I, Section 4. Article VI does not differentiate between some kinds of state powers and others (although Supreme Court cases have sometimes done so), and even if it did, this power is one clearly assigned to the states as a core aspect of the federalism structure the Constitution created. Contra the Ninth Circuit, there's as much need for attention to the "delicate balance between competing sovereigns" here as anywhere, precisely because the Constitution specifically establishes it as an area in which those sovereignties are balanced.
I speculate that this part of the Ninth Circuit opinion, and not the outcome, is what attracted the Supreme Court's attention. It shouldn't, though, detract from the very proper conclusion that a state can't reject a form the national government says it must accept.