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Supreme Court leaves door open to Arizona requiring additional proof of citizenship – Wait, what?

Supreme Court leaves door open to Arizona requiring additional proof of citizenship – Wait, what?

7-2 decision practically invites Arizona to try again using proper administrative procedures

Most of what you have heard in the media about the Supreme Court’s decision yesterday in Arizona v. Inter Tribal Council of Arizona is incomplete to the point of misleading.

It is true that the Court held that Arizona’s Proposition 200 (passed in 2004) requiring documentary proof of citizenship was invalid as contrary to the National Voter Registration Act (NVRA) requirement that states “accept and use” the federal Election Assistance Commission (EAC) voter registration form which merely requires that a registrant affirm citizenship.

But, this ruling essentially was procedural.

The Court held if Arizona wanted to require additional documentary proof of citizenship it needed to follow the administrative procedures under the NVRA to obtain approval to alter the instructions to the federal form.  In fact, in 2005 Arizona had requested such approval, the EAC split 2-2, but Arizona failed to appeal.  The Court held that nothing prevented Arizona from requesting approval again, and appealing if denied.  The Court practically invited Arizona to try again.

Here’s the key passage (pp. 16-17, emphasis mine):

“Since, pursuant to the Government’s concession, a State may request that the EAC alter the Federal Form to include information the State deems necessary to determine eligibility, see §1973gg–7(a)(2); Tr. of Oral Arg. 55 (UnitedStates), and may challenge the EAC’s rejection of that request in a suit under the Administrative Procedure Act, see 5 U. S. C. §701–706, no constitutional doubt is raised by giving the “accept and use” provision of the NVRA its fairest reading. That alternative means of enforcing its constitutional power to determine voting qualifications remains open to Arizona here. In 2005, the EAC divided 2-to-2 on the request by Arizona to include the evidence-of citizenship requirement among the state-specific instructions on the Federal Form, App. 225, which meant that no action could be taken, see 42 U. S. C. §15328 (“Any action this chapter may be carried out only with the approval of at least three of its members”). Arizona did not challenge that agency action (or rather inaction) by seeking APA review in federal court, see Tr. of Oral Arg. 11–12 (Arizona), but we are aware of nothing that prevents Arizona from renewing its request. [fn 10 omitted] Should the EAC’s inaction persist, Arizona would have the opportunity to establish in a reviewing court that a mere oath will not suffice to effectuate its citizenship requirement and that the EAC is therefore under a nondiscretionary duty to include Arizona’s concrete evidence requirement on the Federal Form. See 5 U. S. C. §706(1). Arizona might also assert (as it has argued here) that it would be arbitrary for the EAC to refuse to include Arizona’s instruction when it has accepted a similar instruction requested by Louisiana.”[fn11]

Footnote 11 noted that and additional documentary evidence requirement recently was approved by the EAC in Louisiana:

11. The EAC recently approved a state-specific instruction for Louisiana requiring applicants who lack a Louisiana driver’s license, ID card, or Social Security number to attach additional documentation to the completed Federal Form. See National Mail Voter Registration Form, p. 9; Tr. of Oral Arg. 57 (United States).

If there were any doubt, the Court reiterated this holding in its conclusion (pp. 17-18)(emphasis added):

“We hold that 42 U. S. C. §1973gg–4 precludes Arizona from requiring a Federal Form applicant to submit information beyond that required by the form itself.  Arizona may, however, request anew that the EAC include such a requirement among the Federal Form’s state-specific instructions, and may seek judicial review of the EAC’s decision under the Administrative Procedure Act.”

So there you go.

The Court held that Arizona has a right to seek additional proof of citizenship in state-specific instructions to the federal form if Arizona could show that such information was necessary to effectuate Arizona’s citizenship requirement, but it must follow the administrative procedures under the NVRA to obtain approval, and the appeal procedures under the federal Administrative Procedure Act if denied.

For more on how the media has not appreciated what a huge defeat several aspects of the Court decision were for the left, see Christian Adams’ post, Left Loses Big in Citizenship-Verification Supreme Court Case (h/t Instapundit):

The decision today is a great example of how conservatives can be distracted by squirrels running past. It is understandable and forgivable because they aren’t daily immersed in the long-term election-process agenda of the left-wing groups. Nor do they daily involve themselves with the details of election process. But having been in the “preemption wars” for nearly a decade, I can assure you this case is a big win, even if it doesn’t appear so at first glance.



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Henry Hawkins | June 18, 2013 at 1:04 pm

Awesome news. I’m guilty as charged concerning passing squirrels.

Once again, I think some of the most fortunate people I can think of are Professor Jacobson’s students. I learn so much when I visit his site. I, too, would’ve bought the initial readings on the case. Thank you…

Rarely do I find Mark Levin wrong.

He was dead wrong last night.

Not buying it. Sorry.

What aren’t you buying, Crawford? The language of the decision seems unambiguous to me. What do you think would prevent Arizona from proceeding as the decision suggests? I guess I don’t understand your point.

I didn’t bother reading the news reports beyond the headlines. Newsies don’t know how to read an opinion.

Talk show hosts who spout off from the hip without actually checking out the facts should not be excused. Levin has a long history of exaggerations and misstatements and a poor record of correcting himself.

He can be dead on much of the time, but it is dangerous to give his views much credit on their own merit alone. The same goes for the other talkers and writers who jumped the gun on this and other stories.

It doesn’t help the conservative movement for those perceived as opinion-makers to be so irresponsible.

DINORightMarie | June 18, 2013 at 5:03 pm

Mark Levin was incorrect? I doubt it.

Rush was incorrect today? I doubt it.

I agree with you that the opinion Scalia put forth was practically begging AZ to follow that path you outlined and referenced. And Christian Adams has great points on the hollow “victory” of the ruling. However, the dissenting opinion was spot on, thanks to the strict Constitutional interpretation of Justice Clarence Thomas.

How many have read these opinions? How many depend on the media to “interpret” them and tell us what to think?

That’s the real problem. You can’t trust the media. We can’t or won’t read and comprehend them for ourselves – or won’t take the time; add to that the twisting of the media of everything in the regime’s favor…..result: SQUIRREL!!

Sadly, it works every time!

    Ragspierre in reply to DINORightMarie. | June 18, 2013 at 5:44 pm

    Find a Levin transcript or blub from last night’s show.

    Do NOT put blind trust in any-stinking-body. Mr. Levin is brilliant and well-motivated.

    He’s as human as anyone, too.

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