THE BLOG
03/19/2013 08:48 am ET | Updated May 19, 2013

Protecting Voting Rights Is Not "Crazy"

I attended yesterday's U.S. Supreme Court oral argument in the Arizona voter registration case. The argument went well generally, but Justice Alito suggested the Justices would create a "crazy" double standard by requiring that Arizona election officials accept the federal registration form.

Alito's concerns are unwarranted. Arizona chose to create two standards when it chose to add special "proof of citizenship" to register.

The National Voter Registration Act requires that all states "accept and use" a single, uniform voter registration form for federal elections (states can also still use their own registration forms).
The Federal Form requires that prospective voters check a box and sign an affirmation that they are U.S. citizens under penalty of perjury.

Arizona, however, adopted a state law requiring "satisfactory proof" of U.S. citizenship to register, such as a birth certificate, U.S. passport, or state driver's license that shows citizenship. As a result, Arizona rejected over 31,000 registrations that lacked its "proof of citizenship"--including Federal Forms--even though Arizona concedes it has no evidence that any of these individuals were non-citizens.

My take is that Arizona must accept all Federal Forms that comply with the citizenship affirmation rules set by Congress. The federal Act was designed to expand participation in federal elections by streamlining the registration process with a simple, uniform Federal Form that prevents states from piling on additional hurdles to register. Indeed, as Justice Sotomayor mentioned, Congress explicitly rejected an amendment that would have allowed states to require "documentary evidence" of U.S. citizenship.

Roberts and Alito's "Double Standard" Complaints

Comments by Chief Justice Roberts and Justice Alito, however, suggest they are leaning in the opposite direction. They complained about the possibility that Arizona could continue rejecting state registration forms from an individual who lacked documentary proof of citizenship, even while that same individual could register for federal elections in Arizona by signing and affirming U.S. citizenship on a Federal Form.

During oral argument, Chief Justice Roberts denounced "two different voter rolls" for state and federal elections. Justice Alito said it "seems to me like a crazy system," and would be analogous to the "the IRS creating two different tax returns with different tax rates...."

But their concerns are unwarranted (and surprising, as conservatives generally celebrate federalism). The tax example is particularly weak--every federal taxpayer knows that she has to complete a separate state tax form to meet her state's distinct tax requirements. Dual systems exist in other significant areas, such as the state and federal criminal justice systems. The Constitution expressly gives Congress power to "make or alter" laws that regulate the "manner" of federal elections, while state governments retain broad authority over state and local elections (subject to constitutional provisions prohibiting discrimination and poll taxes).

While most states apply federal election laws to state elections to keep things simple, there are exceptions.

In 1995, for example, Mississippi attempted to maintain a dual registration system rather than apply the National Voter Registration Act to state elections. Mississippi politicians objected because another part of the federal law required voter registration at public assistance agencies--they complained about "welfare voters" who were "too lazy" to travel to the county clerk's office to register. In 2010, Maryland sent military and overseas voters absentee ballots for federal elections about seven weeks before Election Day to comply with federal law, but sent some absentee ballots for state elections just three weeks before Election Day.

Arizona Chose Dual System

Like Mississippi and Maryland, Arizona chose to create a dual system when it piled on additional restrictive registration rules for its state registration application. Congress recognized that states like Mississippi, Maryland, and Arizona might not offer registration in public assistance agencies, might not mail absentee ballots to our armed forces early enough to be returned and counted, or might enact other restrictive laws that exclude thousands of legitimate citizens. As a result, Congress passed laws to protect voters in federal elections.

Mississippi, Maryland, and Arizona (and even some Justices) might disagree with the federal rules, but under our Constitution Congress makes the ultimate policy calls with regard to federal elections. States can decide what they value most--uniformity in their election procedures, or the autonomy to set different standards for federal and state elections. That is the deal the Founders set up by retaining Congress' right to "make or alter" state laws regarding federal elections. States may not use the fact that different systems will be confusing as an excuse to ignore the authority the Founders gave to Congress.

It is not "crazy" for Congress to protect voting rights in federal elections. In this case, the Court should not allow state proof of citizenship rules to trump federal proof of citizenship rules for federal elections.

Spencer Overton is a Professor of Law at The George Washington University Law School and a Senior Fellow at Demos. He is the author of the book Stealing Democracy: The New Politics of Voter Suppression.

This post may be cross-posted at the Demos Policy Shop Blog and ACS Blog.