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House Dems Add Amicus to Voter ID Case, But Did They Botch The Law?

By William Peacock, Esq. | Last updated on

An expedited appeal isn't going to stop third-parties from adding their two cents to the Kansas and Arizona Voter ID case.

Last month, the Tenth Circuit extended a stay against the states and granted an expedited appeal. At issue is whether the two states can pass voter identification laws that not only require voters to present an ID to vote, but require the federal Election Assistance Commission to add language reflecting the requirement to the bare minimum federal form (which only requires the registrant to attest to citizenship).

Now, Democrats from the U.S. House of Representatives have filed an amicus brief in the case, urging the court to block the state laws.

States' Rights Battle

The biggest issue in the case is whether the federal government or the state sets voting requirements.

The National Voter Registration Act (NVRA) does not explicitly preempt states from passing voter registration requirement laws, though it does require states to accept the federal form, which has no proof-of-citizenship requirement.

Kansas and Arizona passed Voter ID laws that require such proof, and are seeking to force the federal Election Assistance Commission (EAC) to add language reflecting state laws to the federal forms. They argued, and the district court agreed, that since the state laws are not explicitly preempted by federal law, the EAC should be forced to comply.

Dems: Fed Trumps States

The House Democrats, in their amicus brief, argue that federal law preempts state law.

"For much of our nation's history, state law was used to diminish or deny qualified citizens the right to vote. The Constitution was amended to correct that wrong and to empower Congress to take appropriate steps to ensure that history does not repeat itself," the legislators wrote. "Congress's authority to override state law in matters of election procedures for federal elections is beyond doubt."

The brief also argues that last year's Arizona v. Inter Tribal Counsel of Arizona already decided the issue, when the Court required the state to take the federal form, even though it lacked the proof-of-citizenship requirement.

Professor Richard Hasen, writing for The Daily Beast, noted that the decision was far more complicated. While the Court required Arizona to take the form, Justice Scalia, joined by the four liberals on the court, and in part by Justice Kennedy, told Arizona that while they must take the form, they could, hypothetically, sue the EAC to force the agency to include the proof-of-citizenship requirement on the form.

Why? Congress has the power to set the "times, places, and manner" of elections under the Constitution's "Elections Clause." But setting voter qualifications is left to the states. Justice Scalia even went so far as to hint that old precedent to the contrary was all but dead.

That's the roadmap that Kansas and Arizona have since followed. We'll see if the 10th Circuit, and possibly the Supreme Court, play along.

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