June 18 (Bloomberg) -- The U.S. Supreme Court took the easy step when it ruled yesterday that the state of Arizona must “accept and use” the form prepared by the federal Election Assistance Commission to register voters.
The harder question is just what “accept and use” means. Arizona was perfectly willing to accept the mandatory federal form for voter registration. It just wanted proof of citizenship, as well. Can a state require you to prove that you are eligible to vote, that you meet the state voter-qualification requirements?
One analogy discussed by both the majority and dissenters on the Supreme Court was that stores often “accept and use” credit cards for payment, but may also require some proof that it is your credit card. We are all familiar with these requirements. When you go to the airport, it isn’t enough to show your boarding pass. You must also show a government-issued picture identification to prove that it is your boarding pass. Your bank requires proof of identity when you want to gain access to your account, even if you have your checkbook or account number.
Banks, merchants, airlines -- all “accept and use” different types of documents and require proof of identity.
In a world-class blunder, however, the majority of the Supreme Court rejected our ordinary, everyday understanding of these words. In Arizona v. Inter Tribal Council of Arizona, it ruled instead that federal law prohibited Arizona from requiring anything other than the federal voter-registration form.
To reach this conclusion, the court ignored the Constitution, which gives Congress the power to regulate the “time, place, and manner of elections,” and only the states the power to regulate voter qualifications.
In deciding that Congress probably intended its voter-registration law to prohibit Arizona from requiring additional information, the Supreme Court seems to be saying that Congress meant to prohibit states from enforcing state voter-qualification rules. Yet the court recognized that Congress has no such power.
The solution, according to the 7-2 majority, is for Arizona to apply to the Election Assistance Commission to alter the federal form so that it includes Arizona’s proof-of-citizenship requirement. Indeed, the court suggests that this federal commission is probably required to grant such a request by Arizona.
There is only one obstacle: This commission currently has no members and is therefore legally incapable of acting on Arizona’s request. In a footnote, the court said that Arizona could always sue the commission for failure to act on its application to amend the voter-registration form. The court also acknowledged, however, that it may not have the power to order a commission that has no commissioners to take action.
This ruling creates a perfect ball of bureaucratic red tape. Let’s get this straight: Sure, Arizona has the exclusive institutional power to set qualifications for voters, but it must first ask permission of a nonexistent commission which legally can’t take any action. Then Arizona must jump through the hoop of suing the commission for failing to take the action that the law prohibits it from taking. The federal court, however, may have no power to order the commission to act because the commission can’t act without commissioners.
The Supreme Court could have avoided this meaningless paper shuffling with a common-sense interpretation of the federal statute, one that follows the simple “accept and use” transaction policies of banks, stores and airlines, which require proof of identity.
Arizona’s voter-registration law was no different. Yet now the state must endure years of red tape, litigation -- and the prospect of noncitizens voting in state and federal elections.
(Anthony T. Caso is associate clinical professor at the Chapman University School of Law in California. He represented the Center for Constitutional Jurisprudence as amicus in support of Arizona in Arizona v. Inter Tribal Council of Arizona.)
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