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Rule of Law

Left Loses Big in Citizenship-Verification Supreme Court Case

June 17th, 2013 - 5:35 pm

Something perverse happened after the Supreme Court’s decision today invalidating citizenship-verification requirements in Arizona for registrants who use the federal voter registration form. The Left knows they lost most of the battle, but are still claiming victory. That’s what they do. Election-integrity proponents and the states are saying they lost, but don’t realize they really won.

The Left wins even when they lose, and conservatives are often bewildered and outfoxed in the election-process game.

Earlier today, I called the decision a nothingburger. After re-reading the case and reflecting a bit more, it’s clear that the decision was a disaster for the Left and their victory cackles are hollow — and they know it.

Worse, conservatives dooms-dayers who have never litigated a single National Voter Registration Act case have taken to the airwaves, describing the case as a disaster which invites illegal-alien voting.

In the last year, I’ve litigated five NVRA cases and worked on the preemption issues for years, and there is more to cheer in today’s opinion than there is to bemoan. Those complaining about the opinion don’t understand what the Left’s goal was in this case: total federal preemption. On that score, Justice Scalia foiled them; indeed, the decision today was a huge war won, even if the small Arizona battle was lost.

From my time in the Justice Department Voting Section, I can remember intimately the wars over some of the preemption issues decided today.

The Left essentially believes that anyone who fills out a federal Election Assistance Commission registration form should be allowed on the rolls, no questions asked. There were complex fights over the “citizen check-off box” issues, with the Left wanting the box rendered meaningless, and conservatives and election-integrity proponents believing a registration cannot be processed until a registrant affirms on the box that he or she is a citizen.

Before the decision today, here is what the Left wanted:

● Invalidation of Arizona’s requirement that those submitting a federal form provide proof of citizenship with their federal form. Mind you, the citizenship-proof requirement is NOT part of federal law and the Election Assistance Commission does NOT require it in the form they drafted.

● Invalidation of state citizenship-verification requirements when a state voter registration form is used (yes, such forms exist separate from the federal requirement) on the basis of federal preemption. They wanted the Arizona case to invalidate all state citizenship-verification requirements.

● Automatic registration if a registrant submits a completed federal EAC approved registration form, no questions asked.

● Federal preemption on the ability for states to have customized federal EAC-approved forms that differed from the default EAC form.

● Federal preemption over states, like Florida and Kansas, looking for independent information on citizenship to root out noncitizens from the voter rolls. Again, the Left wanted the federal EAC form to be the no-questions-asked ticket to the voter rolls.

So what is the score on these five goals after Justice Scalia’s opinion today? Election-integrity advocates are batting .800; left wing groups, .200. And the most insignificant issue of the five is the one issue the Left won. Justice Scalia foiled 4 of 5 of their goals, and the 4 biggest ones.

Comments are closed.

Top Rated Comments   
The States should just bifurcate their roles:
Use a Federal Form (Motor Voter), you cannot vote on state/local candidates/issues;
Use a State Form, you can vote for everything.
Perhaps that will keep the Feds from encroaching upon State prerogatives.
44 weeks ago
44 weeks ago Link To Comment
You're wrong that this is the "only point that matters." The only point that matters in relation to the federal form are the procedures that scalia greenlighted today even if someone submits the federal form. You simply must understand the history of this fight to understand how significant this is. In the past, the left has argued that once the federal form is completed and submitted, there is nothing a election official can do. As a result, election officials all over the nation have been beaten into submission by the lefty groups regarding the federal forms. They do no checking whatsoever because the left has argued such checks would be preempted by federal law. Scalia today rejected that squarely and greenlighted extra checks. This means that Secretary of State Kobach in Kansas, for example, can continue to use federal noncitizen databases to check those federal form applicants. That means other double checks, like jury excusals can be used to block an improper federal form applicant. This is devastating to the ACORN style voter drives because the federal form was (before the opinion) seen as a no questions asked way to fill up the rolls with registrants, sometimes invalid ones. There are other great things in the opinion which I didn't even address in the article because the EAC is a zombie agency right now. But conservatives up in arms about this opinion are displaying an unfortunate lack of understanding of the wider field of battle and focused on the enemy breakthrough in the Arizona sector.
44 weeks ago
44 weeks ago Link To Comment
I join my voice to all the others who have thanked you for this needed clarification. THANKS!
44 weeks ago
44 weeks ago Link To Comment
All Comments   (59)
All Comments   (59)
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"THE CONSTITUTION GIVES THE STATES AUTHORITY OVER ELECTIONS "

Yeah, except for the Elections Clause, which was the issue in this case.
43 weeks ago
43 weeks ago Link To Comment
A well written column and argued like a lawyer but at the end of the day the reasoning is faulty because you avoid the unconstitutional nature of the decision.

The laundry list of items the left wanted notwithstanding, there is a NO WAY they were going to get FULL federal preemption (this is a legal term of art that basically means the States have NO authority in the area). THE CONSTITUTION GIVES THE STATES AUTHORITY OVER ELECTIONS and the notion that the Feds can dictate the terms of STATE elections is specious.

So to bring down the flawed reasoning to real life- imagine if Zimmerman in defending himself from a violent assault was charged with:

-use of nuclear weapons
-use of a weapon of mass destruction
-genocide
-murder

This author would say a murder conviction in the Zimmerman case was a "victory."
44 weeks ago
44 weeks ago Link To Comment
"THE CONSTITUTION GIVES THE STATES AUTHORITY OVER ELECTIONS and the notion that the Feds can dictate the terms of STATE elections is specious."

This decision does not grant federal power over state office elections*, and the constitution gives the federal government the right to enforce the qualifications to federal office (if it will), and the fact the House and Senate can decide whom to seat implies they can penalize states whose election laws are abhorrent to a federal legislative house by not seating people elected under such laws.

*If he will, Mr. Adams can say if I have misunderstood the decision.
44 weeks ago
44 weeks ago Link To Comment
Mr. Adams I have minimally quoted you here.

http://talk-polywell.org/bb/viewtopic.php?p=102123#p102123
44 weeks ago
44 weeks ago Link To Comment
Wow, thank you Christian Adams. Better to loose a battle, than the war. You are oh so correct, a lot of Conservatives don't realize what was actually involved in this battle. I for one.
I feel somewhat better now. Thanks for the education.
44 weeks ago
44 weeks ago Link To Comment
The ruling is specific to federal elections,and can never be applied to state and local elections. (States rights issue)

To finesse the ruling -- the state should require citizenship proof for state and local elections.

Since these are normally conducted at the same time you'll need to have extra ballots -- one with federal-only races on it. Voters without the required proof get to vote ONLY the federal ballot.

Sure, that’s cumbersome, but not worse than having to handle multiple ballots during primaries.

The benefit is that you get to find out EXACTLY how many people don't have citizenship proof, since most people would be embarrassed to be handed the federal-only ballot and would try very hard not to be highlighted.

I believe that discovering how big the problem really is, is worth the extra effort by the elections staff, and keeping people's data up to date is a routine (and computerized) process for them, anyway.
44 weeks ago
44 weeks ago Link To Comment
If I understand this properly, the issue struck down had to do with the registration process. I didn't see anything saying that they couldn't require a valid ID for VOTING.
44 weeks ago
44 weeks ago Link To Comment
I still doubt your sunny interpretation.

Can't ACORN still submit zillions of federal forms and they must be accepted?

Can Arizona require ID to actually vote? Especially given that most of these will probably be voted "absentee" where ACORN workers can "help" fill them out properly.
44 weeks ago
44 weeks ago Link To Comment
Late to the game fellow. AZ already requires ID.

And you need to read the article carefully. They can submit the zillions of forms. In the past, election officials accepted them without checking behind the curtain. Scalia yesterday changed all that. States can now do aggressive checking and don't just have to accept the accuracy of the information.
44 weeks ago
44 weeks ago Link To Comment
So, of the five bullet points, the left got the first and lost the other four?
After the decision today, states have a green light to do double- and triple-checking even if a registrant uses the federal form.
And this is somehow differentiated from asking for a double-check on the spot in the form of ID?

I don't really expect even supreme court decisions to make a *lot* of sense, but that's hard to swallow.
44 weeks ago
44 weeks ago Link To Comment
And, can the federal registration allow voters to vote on state issues? Be nice if this could be differentiated, but I have trouble seeing how it would be done.
44 weeks ago
44 weeks ago Link To Comment
Thank you for the excellent context on this decision. I hope it bears fruit with states willing to straighten out voter roles and return some integrity to the process.
44 weeks ago
44 weeks ago Link To Comment
OT
I posted my comment 3 minutes ago.
page shows 57 minutes ago.
I have no idea who to notify on that.
44 weeks ago
44 weeks ago Link To Comment
routine. i've had mine be off 3 hours.
44 weeks ago
44 weeks ago Link To Comment
I had not had time to read it so I wondered if the hype was accurate.
thank you for this.
44 weeks ago
44 weeks ago Link To Comment
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