On June 17, 2013, the Supreme Court held in Arizona v. Inter Tribal Council 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.  In a 7-2 opinion, authored by Justice Antonin Scalia, the Court ruled that Arizona’s proof of citizenship requirement was inconsistent with the National Voter Registration Act (NVRA), which requires states to “accept and use” the Federal Form for mail-in voter registration, a form that requires registrants to assert, under penalty of perjury, that they are U.S. citizens, but does not require documentary proof of citizenship.   

Justice Scalia’s majority opinion turned to both constitutional text and history to show that the Elections Clause gives the federal government broad power to preempt state law in order to protect the right to vote in federal elections.  “The Elections Clause has two functions.  Upon the States it imposes the duty…to prescribe the time, place, and manner of electing Representatives and Senators; upon Congress, it confers the power to alter those regulations or supplant them entirely.  This grant of power was the Framers’ insurance against the possibility that a State would refuse to provide for the election of representatives to the Federal Congress.”  In line with this history, Justice Scalia’s opinion emphasized that the “Clause’s substantive scope is broad,” giving to Congress a “comprehensive,” “paramount,” power to regulate the mechanics of federal elections, including voter registration.  This broad reading of the Elections Clause allows Congress to supersede state voter identification laws that unfairly limit access to the ballot as well as take action to fix the problem of long lines in polling places, as President Obama urged on election night. 

Indeed, Justice Scalia’s opinion broke new ground in emphasizing the preemptive power of Elections Clause legislation.  As CAC’s brief urged, 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.  As Justice Scalia explained, “[b]ecause the power the Elections Clause confers is none other than the power to pre-empt, the reasonable assumption is that the statutory text accurately communicates the scope of Congress’ pre-emptive intent.”  Hence, “there is no compelling reason not to read Elections Clause legislation simply to means what it says.”  Following this textual approach, Justice Scalia’s opinion  correctly concluded that Arizona’s documentary proof of citizenship requirement could not be squared with the NVRA’s “accept and use” requirement. 

Finally, Justice Scalia considered and rejected Arizona’s argument that a narrow interpretation of the NVRA was necessary to preserve the state’s right to prescribe voting qualifications under Article I, Section 2’s proviso that “[t]he Electors in each State shall have the Qualifications requisite for Electors in the most numerous Branch of the State Legislature.”  Justice Scalia noted that Arizona, of course, had the right to prescribe voter qualifications under the Qualifications Clause, but concluded that Arizona could not simply add a registration requirement not provided for in the Federal Form based on its say-so that it was necessary to enforce state voting qualifications.  Justice Scalia explained that the state might be entitled to an amendment of the Federal Form if the state proved that “a mere oath will not suffice to effectuate its citizenship requirement,” but did not elaborate what evidence Arizona would need to make this showing.  The opinion suggested that Arizona had no right to such an amendment, but would have to show that the information was “necessary to enforce its voter qualifications.”

Justice Thomas and Justice Alito both filed separate dissenting opinions.  Justice Thomas’ dissent urged a radical break from the well-established meaning of the Elections Clause, arguing that Congress did not have the power to set the rules for voter registration in federal elections.  Justice Thomas took pains to note that Arizona had not challenged the constitutionality of the NVRA.  Had it done so, Justice Thomas would almost certainly have voted to strike down this critical protection of the right to vote in federal elections as an unconstitutional interference with the right of states to set voting qualifications.  Justice Alito took a narrower approach, arguing that the Court should have required a clear statement from Congress before pre-empting state election law.  But he failed to answer Justice Scalia’s powerful arguments why the Court has never applied a presumption against pre-emption in Elections Clause cases.  Both Justice Thomas and Justice Alito viewed the suggestion that Arizona could seek an amendment of the Federal Form as a patently insufficient option, particularly since the agency charged with preparing the form is now practically defunct.     

And while Justice Thomas and Justice Alito each relied on the text and history of the Elections Clause in their dissents, they cherry-picked statements supportive of the powers of states.  Neither dissenting opinion grappled with the fact that the Elections Clause gives final say to Congress over the basic mechanics of federal elections, reflecting the Framers’ distrust of states.   Justice Thomas’  dissent offered a tortured understanding of the Elections Clause, limiting it to power over “the casting of ballots and related activities,” ignoring James Madison’s explanation that the Elections Clause “uses words of great latitude,” because “it was impossible to foresee all the abuses that might be made of the [states’] discretionary power.”   As Justice Scalia correctly recognized, such a cramped interpretation is unfaithful to the broad, substantive scope of the Elections Clause.

Some have questioned whether Inter Tribal Council is truly a victory for progressives, or instead is a “Pyrrhic victory” that takes away as much as it gives.  This skepticism misses the enduring significance of Justice Scalia’s sweeping reaffirmation that the Constitution gives Congress very broad powers to protect the right to vote in federal elections, and also misses the very real question about whether Arizona will ever be able to show that its registration requirement is necessary to enforce voter qualifications. 

It is not every day that progressives can have the opportunity to hail Justice Scalia for getting the Constitution’s text and history right, particularly when  the power of Congress to protect individual rights is at stake, but Inter Tribal Council is worthy of celebration.   In an originalist showdown with Clarence Thomas, Justice Scalia demonstrated that the Constitution’s text and history give Congress broad power to protect the right to vote in federal elections.  At a time when states are engaging in voter suppression efforts, Justice Scalia’s reaffirmation of sweeping congressional power under the Elections Clause is a big deal.