Conservative Battle Plan After SCOTUS' AZ Election Law Ruling

Conservatives are launching a multi-track strategy in the wake of the Supreme Court’s major election law case this week.

As Breitbart News reported Monday, the Supreme Court held in a 7-2 decision in Arizona v. Inter Tribal Council that states cannot add a requirement that voters prove they are U.S. citizens on a “Federal Form” created by federal law, unless the federal Election Assistance Commission (EAC) approves such state-specific requirements. The decision was written by conservative Justice Antonin Scalia, with fellow conservative Justices Clarence Thomas and Samuel Alito dissenting.

This lawsuit was prompted when EAC denied Arizona’s request to include proof-of-citizenship on the Arizona version of the Federal Form. But now the EAC is indefinitely crippled. As the justices noted, there are currently no commissioners sitting on the EAC, so now that body cannot decide or do anything.

In response to the Court’s ruling, Rep. Matt Salmon (R-AZ)–a constitutional conservative who served in the 1990s, and after years of success in the private sector has now has returned to Congress–said in a statement, “One of the greatest privileges and responsibilities of a U.S. citizen is the right to vote. For these reasons, it is critical that we uphold the integrity of our voter registration system by ensuring only U.S. citizens are permitted to cast a ballot.”

Joined by fellow Arizona Reps. Trent Franks, Paul Gosar, and David Schweikert, Salmon adds, “In light of yesterday’s Supreme Court decision, I felt compelled to introduce legislation that ensures states have the right to ultimately decide for themselves whether or not to require additional documentary evidence to prove U.S. citizenship.”

This legislation would amend the National Voter Registration Act (NVRA) to expressly allow any state to require that voters using the Federal Form include evidence–such as a passport or birth certificate–that a person is a citizen when registering to vote.

On the Senate side, Sen. Ted Cruz (R-TX)– who has frequently argued before the Supreme Court–likewise responded to the Court’s decision by offering legislation, saying that the ruling creates a “hole in federal statutory law allow[ing] non-citizens to register and thereby encourages voter fraud.” To eliminate this concern, Cruz said, “I will file a common sense amendment to the immigration bill that permits states to require I.D. before registering voters.”

While conservatives pursue legislative fixes, Arizona will pursue a legal strategy that Scalia set forth in his majority opinion in Inter Tribal Council:

Should the EAC’s inaction persist, Arizona would have the opportunity to establish in a reviewing court that a mere oath [of swearing to be a citizen without proof] will not suffice to effectuate its citizenship requirement and that the EAC is therefore under a nondiscretionary duty to include Arizona’s concrete evidence requirement on the Federal Form. Arizona might also assert (as it has argued here) that it would be arbitrary for the EAC to refuse to include Arizona’s instruction when it has accepted a similar instruction requested by Louisiana.

That last part is telling. If someone with legal standing challenges a federal agency ruling, the ruling can be set aside under the Administrative Procedure Act (APA) if the agency’s decision was “arbitrary or capricious.” Since EAC has already allowed one state to require proof of citizenship, they cannot deny the same request from another state unless they can articulate a persuasive reason to treat the two states differently. It’s unlikely EAC could come up with a good answer here, so Arizona should win.

Except that there are no commissioners on EAC to make a decision one way or the other. So after weeks or months of no answer, Arizona could sue seeking a writ of mandamus, whereby a court can order the government to act when the government has failed to provide an answer or caused an unreasonable delay. If that lawsuit fails, Arizona could sue again, saying that EAC’s refusal is unconstitutional.

That looks to me like five or ten years of additional litigation. But Scalia never said it would be easy; he just said those are Arizona’s options.

Some conservative voting-rights lawyers are also encouraged that the majority opinion provided that states can include proof-of-citizenship requirements on state election forms. Most people do not use the Federal Form to register, and the Court’s opinion only applies to this mail-in form. These lawyers are labeling this decision a significant victory.

These conservatives see the Supreme Court rejection of the liberal argument of “total preemption,” as the greatest victory. Total preemption is the doctrine that only federal authorities can make decisions regarding federal elections. For example, NVRA requires states to offer voter registration forms where people get driver’s licenses, but there is nothing in the statute that prevents the state from using its own form. These advocates say the states should flood the marketplace with state forms.

Former Ohio Secretary of State Ken Blackwell–who was in charge of the election at ground zero when Ohio was the pivotal state for President Bush’s 2004 reelection, and who has been an official international observer for contested elections all over the world–said that each state’s Secretary of State (whose duties include being the top election official) would do everything possible to win through the federal courts:

Otherwise those on the Left could try new litigation arguing that state forms requiring proof of citizenship can only be valid to register to vote for state or local offices, and are illegal if they prevent someone to vote for federal candidates (president, U.S. Senate, Congress). With the current ideological balance on the courts, you cannot be certain how that fight would end. Winning the federal litigation through the route Scalia set forth would settle the issue.

To the extent Arizonans are worried about voter fraud, the mail-in Federal Form remains a serious vulnerability. Federal law requires that states accept a mailed-in Federal Form, the contents of which are determined by the federal EAC.

So Arizona lost its first battle, but there is a roadmap to possible victory through federal legislation and litigation. And conservatives are taking heart that they might yet be able to win the war of ballot-box integrity.

Breitbart News legal columnist Ken Klukowski is on faculty at Liberty University School of Law and coauthor of “The Other Voting Right,” published by Yale Law & Policy Review.