Constitution Check: How much power do states have to control who gets to vote?

800px-University_at_Buffalo_voting_boothLyle Denniston explains why Congress and the states both came away with something after Monday’s decision about voting qualifications in Arizona.


“Arizona is correct that the [Constitution’s] Election Clause empowers Congress to regulate how federal elections are held, but not who may vote in them….Surely nothing [in the Constitution] lends itself to the view that voting qualifications in federal elections are to be set by Congress.”

 – Justice Antonin Scalia, writing for the Supreme Court majority on Monday, in the course of a ruling that Arizona contradicted an act of Congress when it required voters in that state to provide specific proof that they were U.S. citizens before they could register to vote or actually vote.  The decision, however, gave Arizona an option on how it might yet implement and enforce such a requirement.


The Constitution speaks in fairly simple terms about how Congress and the states divide up the power to write election laws.   The states have the initial authority – especially for elections to Congress and the presidency – to decide the qualifications that voters must have, but Congress has a kind of back-up veto power.   But the extent of the powers of each level of government were left in some doubt on Monday as the Supreme Court decided a major test case on how to draw that line.  Both Congress and the states came away with something.

If the lineup of the Justices remains the same when future test cases arrive from states that have recently attempted to restrict voters’ eligibility, such as the requirement to show a photo ID at the polling station, the states may emerge as the ultimate winners.   Arizona did, in fact, lose this particular case, but that was the result of the way the dispute had unfolded in the courts.  Arizona’s proof-of-citizenship requirement failed, because it conflicted with a 1993 law that led to creation of a national voter registration form that states were ordered to accept.  The federal form requires a would-be voter to swear they are citizens, but it does not require them to prove it.

No one, including Arizona, had contended in this case that such a law was beyond Congress’s constitutional powers.   Arizona, rather, had simply insisted that in using its own registration form with its proof-of-citizenship requirement, it actually was complying with the federal law, which gave it the option of having its own requirements.  That, though, was the key point on which the state lost.

As long ago as 1932, the Supreme Court said Monday, it had ruled that the Constitution allows Congress to draft a complete election code for choosing member of Congress, including registration requirements.   Using that power, it noted, Congress told states in 1993 that they must accept and use a federal form that potential voters fill out when they seek to register.   Arizona cannot reject that form when a voter submits it, the decision said.  “The federal form,” the opinion added, “guarantees that a simple means of registering to vote in federal elections will be available.”

In enacting that form, the court said further, Congress meant to override conflicting requirements imposed under state law.

So far, then, Congress’s powers over who could register to vote, and how, would seem to have emerged triumphant.

But there was a second part of the opinion, and after reading that, state officials in Arizona said in public statements that the court had pointed the way toward ultimate victory for their proof requirement.

The back half of Justice Antonin Scalia’s majority opinion in the case of Arizona v. Inter Tribal Council provided a sturdy defense of the power of states to decide who gets to vote.   The partial quotation cited at the top of this article is contained in that second part.

The states, that part of the ruling said, may ultimately be able to impose a proof-of-citizenship requirement – and, by implication, other voter qualification obligations – as a matter of their constitutionally assured powers as the primary drafters of election law.

If Arizona wishes to establish a binding requirement of proof of citizenship, the court said, it simply needs to go to the federal agency assigned the task of regulating registration requirements and ask it to add to the federal form Arizona’s own, state-specific requirement of hard evidence that one is a citizen.   If the request is granted, that is the form that would be distributed and used in Arizona.

But, if the federal agency should neglect to respond, or actually turn down the state, Justice Scalia wrote, that would be the point at which the state would be free to file a lawsuit in federal court “to assert a constitutional right to demand concrete evidence of citizenship,” entirely apart from what is or is not required on a federal registration form.

Because those statements were embraced without qualification by seven members of the court, they would seem to be very promising for states’ rights as future cases move through the courts.

The two parts of Monday’s opinion were not easy to reconcile, except to say that, for the short term, Arizona cannot on its own enforce its proof of citizenship requirement.  But the way appears to remain open for it to do so – and for other states to impose other voter qualifications – so long as they press those requirements independently of what a federal registration law specifies.

It would then be up to federal judges to decide which parts of Monday’s opinion seemed to be the most binding.

Lyle Denniston is the National Constitution Center’s adviser on constitutional literacy. He has reported on the Supreme Court for 55 years, currently covering it for SCOTUSblog, an online clearinghouse of information about the Supreme Court’s work.

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