Two More Perspectives On Yesterday’s SCOTUS AZ Ruling

Don’t worry, they are not from me.

First from William Jacobson, Clinical Professor of Law at Cornell and proprietor of the fine blog, Legal Insurrection:

7-2 decision practically invites Arizona to try again using proper administrative procedures

Most of what you have heard in the media about the Supreme Court’s decision yesterday in Arizona v. Inter Tribal Council of Arizona is incomplete to the point of misleading.

It is true that the Court held that Arizona’s Proposition 200 (passed in 2004) requiring documentary proof of citizenship was invalid as contrary to the National Voter Registration Act (NVRA) requirement that states “accept and use” the federal Election Assistance Commission (EAC) voter registration form which merely requires that a registrant affirm citizenship.

But, this ruling essentially was procedural.

The Court held if Arizona wanted to require additional documentary proof of citizenship it needed to follow the administrative procedures under the NVRA to obtain approval to alter the instructions to the federal form.  In fact, in 2005 Arizona had requested such approval, the EAC split 2-2, but Arizona failed to appeal.  The Court held that nothing prevented Arizona from requesting approval again, and appealing if denied.  The Court practically invited Arizona to try again.

Now from J. Christian Adams:

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…

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…

The decision today is a great example of how conservatives can be distracted by squirrels running past. It is understandable and forgivable because they aren’t daily immersed in the long-term election-process agenda of the left-wing groups. Nor do they daily involve themselves with the details of election process. But having been in the “preemption wars” for nearly a decade, I can assure you this case is a big win, even if it doesn’t appear so at first glance.

18 thoughts on “Two More Perspectives On Yesterday’s SCOTUS AZ Ruling

  1. Just heard Paul Ryan on the Mark Levin Show….Trying to Sell the Rubio-Ryan-McCain Amnesty bill.

    Jeezuz God…What a RINO weasal he is !!

  2. Utah,
    This is probably the wrong place to post this, but I have watched the back and forth between you and Joe and some others over the past couple of weeks. I post here for it seems to me that Joe has decided that he is the ultimate judge of RIGHT , WRONG and all things Founders. I have spent many years collecting and reading the letters, diaries and essays of as many of the founders as I could find and afford. And I find myself agreeing with much of what he says.
    But it seems that , if you don’t agree 100% then you are judged wanting in patriotism and conservatism. I have actually found myself leaning to the Anarchists. Not that I think anarchy would be a good thing, but the opposite of totalitarianism, to me, is anarchy. A little anarchy should at least reduce the amount of government. (Foghorn Leghorn voice;” That’s a joke, son. I said a joke. Ya hea?”)
    At any rate, for risk of being named a monarchist , I read and follow, but have stopped posting.

    I am looking forward to reading more of what the rest of you have to say, but henceforth, I am a reader only. Be well.

    • Question Ralph….(in full Foghorn,Leghorn fashion)…..How can an Anarchist be a Monarchist…. :- ).

      Limited Government….not NO government….is probably better than Anarchy…( although Bakunin and perhaps Emma Goldman wouldn’t agree with me ).

      • I am a simple country boy, but I do know the difference between a monarchist and an anarchist. The monarchist was a reference to a much earlier exchange where I (almost an anarchist) was called Hobbsian (monarchist) for disagreeing about the view of the Declaration of Independence. I probably tried to say too much with too few words.

        • Ralph,

          ” I probably tried to say too much with too few words.”

          If I was the offending individual, I apologize — especially since I now understand I am guilty of this same thing far too often: trying to express too much with too few words and too much assumption that I am already understood.

          I’m sorry, really 😦

          • Given a choice between fraternizing with “simple country boys” and “not”, I choose the “simple country boy” group every time. “simple country boys” built America as they are the ones who understand how to “gitter’ done”

    • Ralph, please read my 2 comments below which illustrate America’s “constitutional” problem, created by “modern lawyers” who are making “modern progressive” decisions.

    • Ralph,

      You read me wrong. I am not declaring myself the arbitor of what is right, only declaring that there are some objective truths in this world and that we should acknowledge them. Look, you say you tend to agree with me regarding my take on the founders. This means you have followed my posts. Now, do you honestly believe I am the one telling people that take is what the founders believed and THAT is why you agree — because I told you to believe it? Or do you and I agree because we simply took the time to read what they wrote in the historic context they wrote it and accepted them at their word? Because, if you and I can agree that it is the latter, then no one is declaring what the founders believed but the founders, and you and I are not asserting ourselves as the arbiter of anything, but rather, the defenders of truth.

      In this light, all I have EVER asked people to do is look to what the founders said and why they believed it, and to understand that — thought they were not perfect — they did have a handle on how to run a free and self-governing society and that we would do well to return to those founding principles and ideals and let them guide us now as we seek to correct our past wrongs, right this ship and get it turned back in the direction of liberty and away from tyranny. What’s more, I have not accused anyone of anything because they didn’t agree with me 100%. What I do — and a careful reading of my actual text will support this — is caution people that the line of reasoning they may be traveling is in agreement with the agenda of those they have claimed to oppose in past posts/comments. Attacking an argument, a line of reasoning or position is not a personal attack — at least, not in my world. And cautioning people that they are standing on shaky ground is not an insult, but an act of friendly opposition.

      But then, I understand I am in a decidedly minority opinion regarding myself on the RNL these days and, if that makes me an objectionable person, then so be it: I accept my fate.

  3. Interesting perspectives. I read through them.

    It is important to look for Hope…..But WRT Jacobson’s article I seem to remember a very similar attempt by others ( NOT necess. Jacobson) to do this when Roberts came down on the Side of ObamaCare. There was all this analysis about how we won this won that ……and Yet with all those wins, here we are staring Roberts ObamaCare in the face.

    Abrams seems to reduce this to a Baseball game and innings and such. WELL the .200 that they Won surrounds the issue of Voter ID … Photo ID and such. AND the “wins” Abrams cites will HAVE NOTHING to do with the 2014 Elections ….. thus Fraudulent votes are now virtually assured…..cause they AIN’T GONNA state forms in that election.

    And I really have to question why these two …”Legal eagles” didn’t read and quote and digest Thomas’s wonderful Dissenting opinion.

    At Heart the Ruling favors the 1970’s NVRA over the very cogent arguments in favor of what the Constitution intended articulated by Justice Roberts. Who says that States DO have the authority to determine who votes and Congress cannot. But here we go with the morass of the “Legal Game” trumping Original Constitutionalism…………IMHO.

  4. I appreciate Jacobsen and his Legal Insurrection blog. But allow me to present some of Justice Thomas’ explanation of the Constitutional plain language side, and the explanation by “The Federalist Papers” and explanation by Chief Justice Story (1811-1845):
    THOMAS, J., dissenting

    Congressional legislation of voter qualifications was not part of the Framers’ design.

    The Constitutional Convention did recognize a danger in leaving Congress “too dependent on the State governments” by allowing States to define congressional elector qualifications without limitation. Ibid. To address this concern, the Committee of Detail that drafted Article I, §2, “weighed the possibility of a federal property requirement, as well as several proposals that would have given the federal government the power to impose its own suffrage laws at some future time.” A. Keyssar, The Right to Vote 18 (rev. ed. 2009) (hereafter Keyssar); see also 2 The Records of the Federal Convention of 1787, pp. 139–140, 151,153, 163–165 (M. Farrand rev. ed. 1966) (text of several voter qualification provisions considered by the Committee of Detail).

    These efforts, however, were ultimately abandoned. Even if the convention had been able to agree on a uniform federal standard, the Framers knew that state ratification conventions likely would have rejected it. Madison explained that “reduc[ing] the different qualifications in the different States to one uniform rule would probably have been as dissatisfactory to some of the States as it would have been difficult to the convention.” The Federalist No. 52, at 323; see also J. Story, Commentaries on the Constitution of the United States 217 (abridged ed. 1833) (same).

    Justice Story elaborated that setting voter qualifications in the Constitution could have jeopardized ratification,because it would have been difficult to convince States to give up their right to set voting qualifications. Id., at 216, 218–219. See also Keyssar 306–313 (Tables A.1 and A.2) (state-by-state analysis of 18th- and 19th-century voter qual- ifications, including property, taxpaying, residency, sex, and race requirements).

    The Convention, thus, chose to respect the varied state voting rules and instead struck the balance enshrined inArticle I, §2’s requirement that federal electors “shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature.”

    That compromise gave States free reign over federal voter qualifications but protected Congress by prohibiting States from changing the qualifications for federal electors unless they alsoaltered qualifications for their own legislatures. See The Federalist No. 52, at 323. This balance left the States with nearly complete control over voter qualifications.
    2 Respondents appear to concede that States have the soleauthority to establish voter qualifications, see, e.g., Brief for Gonzalez Respondents 63, but nevertheless argue thatCongress can determine whether those qualifications aresatisfied. See, e.g., id., at 61.

      The practical effect of respondents’ position is to read Article I, §2, out of the Constitution.

    As the majority correctly recognizes, “the power to establish voting requirements is of little value withoutthe power to enforce those requirements.” See ante, at 15.

    Cite as: 570 U. S. ____ (2013) 7
    THOMAS, J., dissenting

    For this reason, the Voter Qualifications Clause gives States the authority not only to set qualifications but also the power to verify whether those qualifications are satisfied.

    This understanding of Article I, §2, is consistent with powers enjoyed by the States at the founding. For instance, ownership of real or personal property was a common prerequisite to voting, see Keyssar 306–313 (Tables
    A.1 and A.2). To verify that this qualification was satisfied, States might look to proof of tax payments. See C. Williamson, American Suffrage from Property to Democracy, 1760–1860, p. 32 (1960). In other instances, States relied on personal knowledge of fellow citizens to verify voter eligibility. Keyssar 24 (“In some locales, particularly in the South, voting was still an oral and public act: men assembled before election judges, waited for their names to be called, and then announced which candidates they supported”).

    States have always had the power to ensure that only those qualified under state law to cast ballots exercised the franchise.


    Click to access 12-71_7l48.pdf

    • I recommend you go read the entire opinion for yourself and consider:

      Ask yourself this question: Who is correct? The Constitution’s language itself; The Federalist papers explanation which was written by the writers and supporters of the Constitution to explain what was intended and “legal”; and Chief Justice Story who was Supreme Court Chief Justice from 1811-1845.


      The “modern lawyers” interpretation ?

      • Careful, Texas,

        When you point this crowd back to the actual wording and the explanations provided by the men who wrote and ratified them, they attack you as a seditious, revolutionary fill-in-the-blank. They’ll probably try to tar and feather you if you point out that one of the two options you provided them is constitutional and the other is not: that one is the rule of law and the other the rule of men 😉

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