By Kris Kobach
Wednesday, March 20, 2013
On Monday, March 18, the Supreme Court heard oral
argument in the case of Arizona v. Inter Tribal Council of Arizona. The case
epitomizes both the radicalism of the Obama Justice Department and the extremes
of the doctrine of federal preemption, under which judges find supposed
conflicts between federal and state law, thereby invalidating the latter, often
by stretching the intent of federal lawmakers. Further, the case is a challenge
to a law that most people regard as a matter of common sense.
Arizona is one of four states that have had the temerity
to ask newly registering voters to prove that they are U.S. citizens (the
others are Kansas, Georgia, and Alabama). All four adopted their laws in
response to a massive and growing problem — the presence of huge numbers of
aliens on states’ voter rolls across the country. In some states, such as
Colorado and Florida, the relevant officials have recently estimated the number
of enfranchised aliens in the thousands. The problem is especially troublesome
because, once an alien gets on the voter rolls, it is extremely difficult to
identify him as an alien and take him off. The aliens that have been discovered
and removed have typically been identified by comparing a state’s voter rolls
with its driver’s license database, because most driver’s license databases now
identify which drivers are aliens. However, that only allows a state to
identify a subset of aliens residing in the state — the ones who decide to
apply for a driver’s license. The rest are nearly impossible to detect.
The only real way to solve the problem is at the front
end. If a state asks voters at the time of registration to provide proof of
citizenship — a birth certificate, a passport, a naturalization document, or
even a driver’s license number (in states such as Arizona that mark aliens on
their driver’s license records) — then the state can ensure that only U.S.
citizens get on the voter rolls in the first place. Otherwise, the system is
based entirely on trust: The registering voter merely checks a box indicating
that he’s a citizen on the registration form and signs it affirming that he’s
telling the truth. But in an era of organizations (e.g., ACORN) that treat
voting laws as inconvenient obstacles on the path to electoral victory, trust
alone is not enough. Arizona and the other three states have taken President
Reagan’s famous approach to dealing with the Soviets: “Trust, but verify.”
But not surprisingly, this commonsense approach to
stopping voter fraud (much like photo-ID requirements) does not sit well with
the Obama administration, and Obama’s ultra-politicized Justice Department has
weighed in as an amicus party opposing the Arizona citizenship-verification
law. Leading the charge for the Obama Justice Department in these matters has
been none other than Thomas Perez, head of the DOJ’s Civil Rights Division and
the president’s recent pick to head the Labor Department.
The plaintiffs and the Justice Department have argued
that the 1993 National Voter Registration Act (NVRA), a.k.a. the “Motor Voter
Act,” doesn’t allow states to verify the citizenship of their voters. Forget
that Congress never clearly stated such an intent when passing the law. Indeed,
the relevant congressional committee reported that it was “particularly
interested in ensuring that election officials continue to make determinations
as to applicants’ eligibility such as citizenship as they’re made under current
law and practice.” The plaintiffs’ argument twists a provision buried in the
NVRA that says states may use their own voter-registration forms to register
voters, but states must also “accept and use” a to-be-created federal form for
registering voters, which was subsequently created by the Election Assistance
Commission (EAC). The EAC’s form, however, doesn’t ask for proof of
citizenship. Thus the plaintiffs argue, asking the voter to provide such
evidence alongside the federal form would be doing something more than
“accepting and using” it. So, the argument concludes, Congress really meant to
say “accept and use the federal form and require nothing else with it,”
preventing states from requiring proof of citizenship.
Sound like hogwash? That’s because it is — especially
when Congress also stated in the NVRA that states are responsible for
determining the eligibility of each applicant to vote. That means determining
whether the applicant lives in the state, whether he is of voting age, and yes,
whether or not he is a United States citizen.
The oral argument on Monday indicated that,
unfortunately, the four liberal activists on the Court are likely to vote to
strike down the Arizona law, accepting the plaintiffs’ claim that Congress
wanted the states to build their voter-registration systems on the simple
assertion by voters that they are U.S. citizens.
Justices Scalia, Roberts, and Alito each systematically
picked apart the arguments of the plaintiffs and the Obama administration,
suggesting that all three are leaning Arizona’s way. Usually silent Justice
Thomas is presumably with them — particularly since he, more than any other
justice, believes that preemption doctrine has grown into a judicially driven
juggernaut that tramples the autonomy of the states.
As for Kennedy, his questions initially suggested that he
finds the basic argument of the plaintiffs to be a plausible reading of the
NVRA. On the other hand, he later stated that the Ninth Circuit’s decision
against Arizona “ignores the proposition that the state has a very strong and vital
interest in the integrity of its elections.” So the oral argument leaves us
with a familiar question: What will Justice Kennedy do?
The answer to that question now will have enormous
national implications. Our country has tens of thousands, if not hundreds of
thousands, of aliens on the voter rolls in the various states. Every time an
alien votes, that vote cancels out the legitimate vote of a U.S. citizen. Alien
votes effectively disenfranchise U.S. citizens, and states must have the
ability to stop this from happening. It is implausible that Congress in 1993
intended to deprive them of this basic ability to protect the integrity of
elections. But for now, all we know is that Justice Kennedy will likely decide
the matter.
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