States Can't Require Proof of Citizenship to Vote in Federal Elections


ACRU Staff


June 18, 2013

This column by ACRU Senior Legal Analyst Ken Klukowski was published June 17, 2013 on

The Supreme Court ruled today in Arizona v. Inter Tribal Council that federal law does not allow states the option of requiring voters to prove they are American citizens when they register to vote.

The National Voter Registration Act of 1993 (NVRA, or “Motor Voter”) creates a standardized national system for registering to vote in federal elections. It allows for registration three ways: (1) in person, (2) when you get your driver’s license, or (3) by mail.

The Election Assistance Commission (EAC, created by a later federal law in 2002) creates regulations specifying a standard registration form (the “Federal Form”) to determine what information you must provide to register. NVRA also requires that EAC design the Federal Form “in consultation with the chief election officers of the States,” which are each state’s secretary of state.

Congress enacted NVRA pursuant to the Constitution’s Elections Clause, which reads:

The Times, Places, and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the places of chusing Senators.

Writing for the 7-2 majority, Justice Antonin Scalia began, “To be eligible to vote under Arizona law, a person must be a citizen of the United States. This case concerns Arizona’s efforts to enforce that qualification.” He noted that Arizonans adopted Proposition 200, under which voters must, “present proof of citizenship when they register to vote and to present identification when they vote on election day.”

Prop 200 requires election officials to “reject any application for registration that is not accompanied by satisfactory evidence of United States citizenship.” Such evidence could be a passport, birth certificate, or anything else accepted under federal law. Scalia noted that the Federal Form requires you to certify under penalty of perjury that you are a citizen, but need not prove it.

Scalia wrote that the issue in this case is “whether the federal statutory requirement that States ‘accept and use’ the Federal Form pre-empts Arizona’s state-law requirement that officials ‘reject’ the application of a prospective voter who submits a completed Federal Form unaccompanied by documentary evidence of citizenship.”

The majority acknowledged that there are two ways NVRA’s language could be read:

It might mean that a State must accept the Federal Form as a complete and sufficient registration application; or it might mean that the State is merely required to receive the form willingly and use it somehow in its voter registration process.

However, Scalia later added, that:

… reading “accept” merely to denote willing receipt seems out of place in the context of an official mandate to accept and use something for a given purpose. The implication of such a mandate is that its object is to be accepted as sufficient for the requirement it is meant to satisfy.

Scalia later explained, “It is improbable that the statute envisions a completed copy of the form it takes such pains to create as being anything less than ‘valid.'” He also noted that this form is for federal elections only. States can impose additional requirements to participate in state elections, including proof of citizenship.

Finally, Scalia addresses Arizona’s argument that when the Supremacy Clause of the Constitution is at issue, “we start with the assumption that the historic police powers of the States were not to be superseded by [a federal law] unless that was the clear and manifest purpose of Congress.”

The Court held that the same preemption framework does not apply here:

“There is a good reason for treating Election Clause legislation differently: The assumption that Congress is reluctant to pre-empt does not hold when Congress acts under that constitutional provision … When Congress legislates with respect to the ‘Times, Places and Manner’ of holding congressional elections, it necessarily displaces some element of a pre-existing legal scheme erected by the States.”

Scalia goes on to opine, “Arizona is correct that the Elections Clause empowers Congress to regulate how federal elections are held, but not who may vote in them.” He notes that NVRA allows any state to request that EAC include certain items on the Federal Form; if EAC refuses, the state can pursue a lawsuit under another federal law to make EAC justify its decision.

The Court noted that Arizona previously requested proof of citizenship be included on the Federal Form but that they failed by a single vote to get EAC to include it. However, after that denial Arizona did not choose to pursue a lawsuit. Scalia concluded by saying that Arizona may renew its request to EAC, and if again rejected, Arizona can bring such a lawsuit seeking a court order.

Justice Clarence Thomas wrote a lengthy dissent:

I think that both the plain text and the history of the Voter Qualifications Clause and the Seventeenth Amendment authorize States to determine the qualifications of voters in federal elections, which necessarily includes the related power to determine whether those qualifications are satisfied. To avoid substantial constitutional problems created by interpreting [this section of NVRA] to permit Congress to effectively countermand this authority, I would construe the law as only requiring Arizona to accept and use the form as part of its voter registration process, leaving the State free to request whatever additional information it determines is necessary to ensure that voters meet the qualifications it has the constitutional authority to establish. Under this interpretation, Arizona did “accept and use” the Federal Form. Accordingly, there is no conflict between [Arizona law] and [federal law] and, thus, no pre-emption…

Instead of adopting [the challengers’] definition of “accept and use” and offering Arizona the dubious recourse of bringing an APA challenge within the NVRA framework, I would adopt an interpretation of [NVRA] that avoids the constitutional problems with [the challengers’] interpretation. The States, not the Federal Government, have the exclusive right to define the “Qualifications requisite for Electors,” [“electors” are voters,] which includes the corresponding power to verify that these qualifications have been met. I would, therefore, hold that Arizona may “reject any application for registration that is not accompanied by satisfactory evidence of United States citizenship,” as defined by Arizona law.

Justice Samuel Alito also dissented, stating, “The Court reads an ambiguous federal statute in a way that brushes aside the constitutional authority of the States and produces truly strange results.”

Under the Constitution, the States, not Congress, have the authority to establish the qualifications of voters in elections for Members of Congress. The States also have default authority to regulate federal voter registration. Exercising its right to set federal voter qualifications, Arizona, like every other State, permits only U.S. citizens to vote in federal elections, and Arizona has concluded that this requirement cannot be effectively enforced unless applicants for registration are required to provide proof of citizenship. According to the Court, however, [NVRA] deprives Arizona of this authority. I do not think that this is what Congress intend
ed… These results are not required by the NVRA. Proper respect for the constitutional authority of the States demands a clear indication of a congressional intent to pre-empt state laws enforcing voter qualifications.

Ohio’s former chief elections officer, Secretary of State Ken Blackwell, was present in the courtroom today when the Court handed down its decision. Currently a law professor at Liberty University, Blackwell told Breitbart News: “The problem I have with the majority is that I really think petitioning the EAC is a dead end.”

“The EAC is a casualty of political warfare right now, so as Justice Alito mentioned in his dissent, it currently has no members, and therefore lacks a quorum to conduct business,” he explained. “It’s shut down for the time being, and can’t issue any decisions.”

“I’m with Justices Thomas and Alito on this one. Administering elections is part of state sovereignty,” Blackwell stated. “Arizona–like Ohio–has the authority to require proof of citizenship, and Congress has not legally trumped it.”



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