It is fitting that during Halloween week, Supreme Court justice Sandra Day O’Connor has decided to haunt again America’s conservatives. As you may recall, in one of her most monumental decisions – 2003’s Grutter v. Bollinger – she ruled that affirmative action in higher-education admissions was an evil that America should try to phase out in the next 25 years or so. Until then, she concluded that the benefit of classroom diversity outweighed the evil of reverse discrimination.
Full-blooded conservatives may have felt relief when moderate conservative O’Connor retired and was replaced by stalwart conservative Alito. In her retirement, however, O’Connor would occasionally serve as a guest judge on the Ninth Circuit Court of Appeals, and as luck would have it, she was guesting as part of the three-judge Ninth Circuit panel that earlier this week overturned a critical part of Arizona’s Proposition 200. Gonzalez v. State of Arizona, 08-17094 (Ninth Circuit, October 26, 2010).
Proposition 200 was passed by the people of Arizona in 2004. The critical part of the proposition requires people who are registering to vote to show proof of their citizenship – e.g., driver’s license or birth certificate. That seems like a reasonable requirement, especially in a state like Arizona with a huge number of non-citizens. After all, citizenship is still a requirement to vote in America.
Advocates for Mexican-Americans didn’t think Proposition 200 was reasonable. In fact, they thought it stifled Mexican-American participation in the electoral process and, more importantly, was void because it conflicted violated the National Voter Registration Act (NVRA), which only required that voter applicants give their word about their citizenship. As Ronald Reagan didn’t say, “Trust, but don’t bother verifying.”
On October 26, 2010, a three-judge panel for the Ninth Circuit agreed 2-1 with the Mexican-American advocates, and Sandra Day O’Connor was part of the “2.” Although she didn’t write the opinion, she concurred in Judge Ukuta’s opinion that the NVRA superseded Proposition 200.
Although I was skeptical as I started reading the Judge Ukuta opinion, I came away thinking that the decision was correctly made. The first important point in the opinion was that the matter was controlled, not by the Supremacy Clause in the Constitution, but rather by the Elections Clause:
“’The Times, Places, and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but Congress may at any time by Law make or alter such Regulations, except as to the Place of chusing Senators.’ U.S. Const. art, I, § 4, cl. 1. In a nutshell, the Elections Clause gives state governments initial responsibility to regulate the mechanics of national elections, but only so far as Congress declines to preempt state legislative choices.”
This is an important distinction because a court’s analysis under the Supremacy Clause attempts to maintain a delicate balance between state and federal governments and to preserve state authority where possible. By way of contrast, a court’s analysis under the Elections Clause does not involve two competing sovereigns, but rather one dominant sovereign (the feds), with the states having delegated, not reserved, authority.
After deciding that this matter would be controlled by the Elections Clause, it was only a short jump for the court to decide that requiring proof-of-citizenship conflicted with the easy-to-register procedures established by the 1973 NVRA. As the court noted, the NVRA was a comprehensive law that included the infamous “motor voter” provision and even forbade states from requiring that any registrant statements be notarized. (The law was obviously the brainchild of the same type of Congress that contributed to the financial crisis of 2007-2008 by pushing for everyone in America to own a home, including the $14,000 strawberry picker in California who obtained a government-backed home mortgage for $700,000.)
An interesting nuance to the Gonzalez decision is that it applies only to registration for federal elections. State and local jurisdictions are free to establish different requirements for their non-federal elections. In fact, I read last week that there are several northeastern jurisdictions in the process of enabling legal non-residents to vote in local elections. If the federal government refuses to amend the NVRA, perhaps Arizona should consider limiting Proposition 200 to non-federal elections.
Personally, I have always believed that increased voting should be an objective and a benchmark of America’s civic-mindedness. But I don’t believe in artificially increasing participation by dumbing-down the process. Instead of making it easy to vote, let’s make it something that people care about, at least as much as football.