June 17, 2013

Supreme Court Decides Arizona v. Inter Tribal Council of Arizona, Inc.

On June 17, 2013, the Supreme Court decided Arizona v. Inter Tribal Council of Arizona, Inc., No. 12-71, holding that the National Voter Registration Act of 1993 (NVRA) pre-empts Arizona's requirement that the uniform federal form for voter registration developed by the federal Election Assistance Commission (EAC) be accompanied by documentary evidence of citizenship because the NVRA requires states to accept and use the uniform federal form to register voters for federal elections.

Congress enacted the NVRA, a "complex superstructure of federal regulation atop state voter-registration systems," to require states to provide simplified systems for voter registration in federal elections. The NVRA requires each state to permit prospective voters to register to vote in federal elections by mail using a standard federal registration form the EAC developed. The NVRA requires states to "accept and use" this standard form, which is drafted in consultation with states' chief election officers and contains a number of state-specific instructions approved by the EAC.

In an effort to enforce its qualification that a voter be a United States citizen, Arizona's election code as amended by Proposition 200 required voters to present satisfactory proof of citizenship, defined by statute, when they registered to vote. The EAC had previously denied Arizona's request that the federal form include this requirement in Arizona's state-specific instructions. For proof of citizenship, the federal form requires only that an applicant aver under the penalty of perjury that he is a citizen.

A group of individual Arizona residents and a group of nonprofit organizations led by the Inter Tribal Council of Arizona filed separate suits seeking to enjoin the provisions of Proposition 200. The District Court consolidated the suits and denied the plaintiffs' motions for preliminary injunction. A two-judge motions panel from the Ninth Circuit enjoined Proposition 200 pending appeal, but the United States Supreme Court vacated that order and allowed the 2006 election to proceed under the new rules. On remand, the District Court denied a preliminary injunction and granted Arizona's motion for summary judgment on the plaintiffs' claim that the NVRA pre-empted Proposition 200's documentary proof requirement. A panel of the Ninth Circuit affirmed in part but reversed as to the pre-emption issue. The en banc Ninth Circuit agreed.

The Supreme Court affirmed, holding that the NVRA preempted the additional Arizona registration requirement. Addressing the Constitution's Elections Clause, the Court noted that Congress has the power to pre-empt state legislative choices over the times, places, and manner of elections. The Court next considered whether the NVRA's mandate that a state "accept and use" the federal form conflicted with Proposition 200 and determined that Arizona's interpretation was not compatible with either other statutory uses of the word "accept" or neighboring provisions of the NVRA. The Court stated that "[i]t is improbable that the statute envisions a completed copy of the form it takes such pains to create as being anything less than 'valid.'" The Court declined Arizona's invitation to apply a presumption against pre-emption in Election Clause cases. Finally, the Court determined that its reading did not violate Arizona's constitutional right to determine who may vote in an election because Arizona could still challenge the EAC's denial of its request to require documentary proof and seek judicial review under the Administrative Procedures Act.

Justice Scalia delivered the opinion for the Court, in which Chief Justice Roberts and Justices Ginsburg, Breyer, Sotomayor, and Kagan joined, and in which Justice Kennedy joined in part. Justice Kennedy filed an opinion concurring in part and concurring in the judgment. Justices Thomas and Alito filed dissenting opinions.

Download Opinion of the Court

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