Plaintiffs argued that Proposition 200 violated the National Voter Registration Act, which requires that states “accept and use” the Federal Form for mail-in voter registration, a form that requires an individual to attest under penalty of perjury that he or she is a citizen but does not require documentary proof of citizenship.   The Ninth Circuit, sitting en banc, held that Arizona’s requirement was pre-empted by the NVRA.  The Supreme Court granted Arizona’s petition for a writ of certiorari.

On January 22, 2012, Constitutional Accountability Center, together with the Brennan Center for Justice at NYU School of Law, filed an amici curiae brief on behalf of prominent constitutional law professors, including Pulitzer Prize winning historian Jack Rakove, urging the Justices to strike down the Arizona law.  As we demonstrated in our brief, the text and history of the Elections Clause explicitly empower Congress to “make or alter” state election law through federal laws exactly like the NVRA in order to protect the right to vote in federal elections.  When Congress acts under the Elections Clause, the very point is to displace state laws, such as Arizona’s effort to impose additional obstacles to registering to vote.

On June 17, 2013, in a 7-2 ruling, the Supreme Court held, as we had urged, that Arizona’s requirement that a citizen provide satisfactory documentary proof of citizenship in order to register to vote in federal elections was preempted by federal law.  As our brief argued, the Court held that the only purpose of the Elections Clause is to displace state laws, and therefore Congress should be presumed to have displaced states when it acts.  Justice Scalia’s majority opinion (joined also by Chief Justice Roberts, among others) emphasized the broad substantive scope of the Clause, explaining that it provides Congress with the “comprehensive” and “paramount” power to regulate the mechanics of federal elections, including voter registration.  At a time when states are looking for new ways to suppress the vote, the Supreme Court’s opinion is an important reaffirmation of congressional power to protect the right to vote in federal elections.  Justices Thomas and Alito dissented, and would have upheld the Arizona law.