Supremes Could Undermine Voting Rights, Beyond Voting Rights Act

Most of the attention among voting rights advocates in this session of the Supreme Court have been quite naturally focused on the challenge to Section 5 of the Voting Rights Act of 1965, where’s there is a better-than-even chance five Justices could decide at a minimum to force Congress to reconsider the law’s jurisdictional reach.

But the Court heard oral arguments today on a different voting rights issue, in a case now being described as a potential “sleeper:” a conflict between the federal “motor voter” statute and an Arizona law requiring that potential voters provide proof of citizenship. And unlike the issues of discrimination raised in the VRA case, the Arizona case is a straight-out matter of the extent to which federal election laws may trump (or more technically, “pre-empt”) state election laws.

Today’s arguments led to conflict between Justices Sotomayor and Scalia, as you might imagine, with Scalia leading the charge for a very limited federal involvement in election laws, per this report from TPM’s Sahil Kapur:

Scalia set his marker early in the argument, openly lamenting that Arizona did not launch a more sweeping challenge to the validity of the NVRA [National Voter Registration Act], arguing that Congress may not prohibit states from seeing proof of the eligibility of a voter prior to registering him or her.

But SCOTUSBlog’s Lyle Denniston suggests the Court may deal with the case as an issue of statutory interpretation–whether the proof-of-citizenship requirement can in fact be squared with the NVRA without reaching the more basic constitutional issue. But stay tuned.

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Ed Kilgore

Ed Kilgore, a Monthly contributing editor, is a columnist for the Daily Intelligencer, New York magazine’s politics blog, and the managing editor for the Democratic Strategist.