Franita Tolson '05's Guest Blog on Congress, Voter Qualifications and Federal Elections

From AFI's Justice Watch Blog:

GUEST BLOG: Does Congress have authority to set voter qualifications for federal elections?
By Franita Tolson,
Betty T. Ferguson Professor of Voting Rights at
Florida State University College of Law

In Arizona v. Inter Tribal Council of Arizona, the U.S. Supreme Court held the National Voter Registration Act (“NVRA”) preempted Arizona’s Proposition 200, which required documentary proof of U.S. citizenship to register to vote in federal elections. The NVRA, which provides that all states must “accept and use” a uniform federal form to register individuals to vote, requires only that individuals attest to U.S. citizenship, but does not require documentary proof.
On the surface, the Court’s decision appears to vindicate federal authority by recognizing Congress’s broad power under the Elections Clause to regulate federal elections. Pursuant to the Clause, states may choose the “Times, Places and Manner of holding Elections for Senators and Representatives,” but this authority is subject to Congress’s power to “at any time make or alter such Regulations.” According to the Court, Congress’s authority under the Elections Clause is not subject to the usual presumption against preemption, where the Court assumes that Congress does not intend to preempt state authority in enacting legislation absent explicit language to the contrary. Rather, Congress’s authority to “make or alter” state legislation pursuant to the Elections Clause is, by definition, an intent to preempt. Thus, Arizona’s additional requirement for voter registration must give way to the NVRA’s less onerous registration regime for federal elections.

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