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In case you didn’t have enough Supreme Court business to worry about

Here’s Texas Redistricting to give you more to worry about, in the form of Arizona v. Inter Tribal Council of Arizona.

Although the case has gotten far less attention than challenges to the constitutionality of section 5 of the Voting Rights Act, it could profoundly reshape the power of the federal government to regulate elections by narrowing what traditionally has been a broad interpretation of the scope of the Constitution’s Elections Clause (Article I, sec. 4, clause 1).

That clause provides that:

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 Places of chusing [sic] Senators.

Still the only voter ID anyone should need

In 1993, Congress used the clause to enact the National Voter Registration Act (NVRA), which set nationwide standards for voter registration.

In 2004, however, the state of Arizona passed legislation to require that new voters in Arizona provide proof of citizenship when registering to vote and instructing election to reject all applications, even those approved under the NVRA, that were not accompanied by that proof.

In subsequent litigation, Arizona argued that the NVRA could not be read in a way to limit a state’s right to set voter qualifications under different clauses of the Constitution.


Indeed, the Supreme Court’s interpretation could well affect litigation in Texas currently at the Fifth Circuit over application of the NVRA to Texas’ voter registration regime.

Back in August 2012, U.S. District Judge Gregg Costa cited conflicts with the NVRA when he entered an order enjoining enforcement of Texas laws that prohibit deputy voter registrars from photocopying completed applications and that require that completed applications be delivered to county elections officials in person. The Fifth Circuit heard an expedited appeal in the case back in December, and a decision is expected any day now.

The act also served as one of the bases used in 2012 to challenge what LULAC contended were unacceptable voter purges being conducted by Harris County.

Meanwhile, in Austin, State Rep. Rick Miller (R-Sugar Land) has filed a bill, HB 3074, that would require proof of citizenship before new registrants are added to the voter rolls.

As set out in a detailed amicus brief at the Fifth Circuit in the Texas NVRA case, Texas has a long and complicated voter registration history. And voter registration remains a highly charged issue in the state. Just look at the back and forth 2008 allegations about the processing and rejection of applications in Harris County or allegations that Waller County improperly rejected applications of African-American students.

This may be a sleeper case, but, given the numerous and continuing voting-related battles in Texas, it’s one to watch.

See here, here, and here for background on the Texas litigation. Oral arguments were heard on Monday. SCOTUSBlog, TPM, and Rick Hasen have previews. In the end, based on the reports from SCOTUSBlog and TPM, it’s not clear how this might shake out. The hearing wound up being less than an hour in total, and as the SCOTUSBlog report noted, it seemed to hang on a pretty narrow legal distinction, which may mean that the decision will be narrowly tailored. It’s even possible, I suppose, that this could strengthen the case against restrictive voter registration procedures like the ones Texas passed in 2011. That’s not going to stop me from sweating it out until the ruling. See the transcript, via Texas Redistricting, for more.

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