It's All Politics
Mon June 17, 2013
Voting Rights Groups Get High Court Win As Bigger Case Looms
Originally published on Mon June 17, 2013 6:15 pm
Advocates of tougher voter registration standards have racked up wins in recent years — voter ID laws have taken hold across the nation, for example.
But those who believe that government should make voting as easy as possible just gained a significant victory with the U.S. Supreme Court's decision slapping down an Arizona law that required potential voters to prove their citizenship.
In its 7-2 decision, the court ruled that the 1993 National Voter Registration Act, the so-called motor voter law, trumped an Arizona law passed in 2004. The state law demanded that voters produce documentation of their citizenship at the time they registered to vote.
The federal law requires those registering in federal elections only to attest to their citizenship. The process is simple enough that people can register by postcard.
The high court's decision on the Arizona law put an extra bounce in the step of officials at civil and voting-rights organizations.
"We are very, very pleased with the outcome today after several long years of litigation up through the district court and finally to the U.S. Supreme Court," said Nina Perales, vice president of litigation for MALDEF, the Mexican American Legal Defense and Education Fund. She was among officials from several voting-rights groups who spoke with reporters in a teleconference. "This is not just a victory [for the individuals on whose behalf MALDEF filed suit] but it's a victory for voter registration organizations."
After the Arizona law took effect in 2006, voter registration fell 44 percent in Maricopa County, the state's most populous county, which includes the city of Phoenix. The higher standard not only kept many people of Latino ancestry from registering — Perales told NPR's Nina Totenberg in an interview that 80 percent of those whose voter registrations were rejected were non-Hispanic whites.
But the decision may not have been an unalloyed victory for voting-rights groups. Rick Hasen, an election law expert and law professor at the University of California, Irvine, said the Supreme Court's ruling left states with the ability to wipe the smile off the faces of voting-rights advocates. In an analysis of the court's decision, Hasen wrote:
"To begin with, Justice Scalia provided a road map for Arizona ultimately to win this very case when it goes back to the lower courts. The court wrote that Arizona should go back to the U.S. Election Assistance Commission to ask it to reconsider its request to include the citizenship requirement on the federal form."
Of course, the little-known Election Assistance Commission actually exists more in theory than reality now, as all four of its posts are vacant — a casualty of Washington's partisan animus.
That led another California law professor, Tom Caso at Chapman University, who once served on The Federalist Society's board, to say in a statement:
"The Supreme Court today opened the door to noncitizen voting ... by striking down Arizona's voter registration proof of citizenship requirement. The Court conceded that the Constitution granted Arizona the authority to restrict voting to citizens, but ruled that Arizona's demand for documentation conflicted with a federal voter registration law. In order to ensure that only citizens are allowed to vote, according to the Court, Arizona must submit an application to a federal Commission that has no members for permission to change the federal voter registration application. The Court conceded that it may not have the power to require the Commission, which has no members, to take action on Arizona's application."
While important, the Arizona case isn't the superstar voting-rights case of the current term. That would be Shelby County v. Holder, which challenges Section 5 of the 1965 Voting Rights Act. That section requires certain state and local governments with a history of discrimination against minority voters, particularly African-Americans, to receive Justice Department approval before they change their election laws. That so-called pre-clearance provision could be struck down. The conservatives on the court appeared to be leaning in that direction during the oral arguments.
But Barbara Arnwine, president and executive director of the Lawyers' Committee for Civil Rights Under Law, said she hoped the Arizona decision augured well for the court upholding Section 5.
"They do both fundamentally serve the same purpose," she said of the motor voter and Section 5 laws in the conference call with reporters. "And you would hope if the court was being consistent that they would uphold this law because they serve the same purpose of guaranteeing to Americans, to all citizens, the right to vote unfettered by onerous practices — be they based on discrimination or be they based on unnecessary and unreasonable burdens on the right to vote."