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In a landmark 7-2 ruling (Arizona vs. Inter Tribal Council of Arizona) upholding the primacy of the National Voter Registration Act (the so-called “Motor Voter” Law) over a local state law requiring would-be voters to provide additional proof of citizenship, the Supreme Court reaffirmed the importance of unhindered access to voting for eligible voters. Application of the local Arizona law in question would have posed an unreasonably high burden upon military and overseas citizens attempting to vote.

ACA has long advocated the right of overseas and military voters to facilitated and expeditious access to voter registration and forecasting, with a minimal bureaucratic and administrative burden placed on the overseas voters. Having joined in an amicus curiae brief in favor of invalidation of the Arizona law, ACA applauds the Supreme Court's decision and stands ready to assist and promote the work of all civil rights advocates in maintaining untrammeled access to voting rights, wherever the voter may live.

Our initial elation at the news of the Court’s decision was tempered with the realization that what the Supreme Court has given with one hand it appears to have largely taken away with the other. The High Court has left the door open to additional limitations being set by states on who will be entitled to vote in future state and federal elections.

While invalidating the state law under the doctrine of presumptive preemption of state law which conflicts with federal law on a specific point, Justice Scalia nevertheless asserted that states could ask the federal government for permission to establish specific requirements to be met in order for an individual to be accorded the right to vote.

Indeed, the list of federal laws concerning voter rights which could potentially be undermined by state-mandated limitations on voter rights includes the Overseas Citizens Absentee Voting Act (“UOCAVA”), which is a linchpin of overseas citizen voter rights.

While the ruling provided short-term guidance as to the division of powers regarding election administration, it left open a path for fundamental change in election law to be wrought by States intent on shaping the nature of the electorate in State and federal elections. It can be anticipated that states will quickly move to take advantage of Justice Scalia’s encouraging opinion; Arizona could notably now argue that it has a constitutional right to insist on proof of citizenship for all voters as a precondition to voting.

Observers have pointed to the apparently irreconcilable strands of this decision as an elevation of form over substance. Query what would have happened had Arizona preemptively sought judicial approval for its implementation of a proof of citizenship requirement. Justice Scalia appears to argue that what Arizona could not obtain through adversarial litigation centered on a law it had enacted, it may obtain by securing judicial benediction on a planned modification in its election law.

ACA will continue to monitor the situation closely as important changes in voting laws, particularly those pertaining to overseas voters, will be actively debated in the courts and by election law specialists in the run-up to 2016.


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(19 June 2013)