On March 18, 2013 the Supreme Court heard oral argument in Arizona v. Inter Tribal Council of Arizona. Must Congress expressly preempt state voter registration and eligibility procedures or may a court imply such preemption based on congressional adoption of federal procedures for voter registration for federal elections? The Ninth Circuit adopted a more aggressive preemption test for voting procedures, rejecting the usual presumption against preemption in the absence of a clear statement of congressional intent to preempt state law. It then applied that more aggressive test to strike down an Arizona requirement that persons seeking to register to vote show proof of citizenship. The federal registration form asks that registrants state, under penalty of perjury, that they are citizens (and will be over 18 at the time of the election), but does not require proof of citizenship beyond the sworn statement. The Supreme Court refused to grant a pre-election stay of the lower court decision striking down the law, but later granted certiorari, suggesting that it might be more interested in the new preemption test adopted by the Ninth Circuit than in the particular details of the law held to be preempted by that court. As with many cases granted from the Ninth Circuit, should we expect highly critical questioning regarding the Ninth Circuit’s legal reasoning, regardless of whether the specific law at issue is ultimately held to be preempted? Erik Jaffe, appellate attorney and Chairman of the Federalist Society’s Free Speech and Election Law Practice Group, provided post-argument commentary during a special Courthouse Steps edition of Teleforum.
- Mr. Erik Jaffe, Appellate Attorney and Chairman of the Federalist Society’s Free Speech and Election Law Practice Group
- Moderator: Mr. Dean A. Reuter, Vice President & Director of Practice Groups, The Federalist Society