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On Federalism and the Arizona Voter Identification Case



Authors as Published

The U.S. Supreme Court this past week, in a 7-2 ruling, with Justice Antonin Scalia writing the majority opinion, struck down an Arizona law that sought to impose more onerous voter identification requirements than those required by the national government. In doing so, however, the high court, as National Public Radio Supreme Court reporter Nina Totenberg said in her story on the decision, fairly “begged the state to try again,” but this time via appropriate channels.

The issue of illegal voters had gained traction with Republican conservatives in Arizona and beyond in the run-up to the nation’s 2012 general election. These groups had alleged that large amounts of voter fraud were occurring and demanded additional identification requirements to address it. Beyond this general concern many GOP activists were especially distressed because they believed substantial numbers of illegal immigrants were voting.

As it happened, neither concern had any empirical basis, as I have noted previously. But such apprehensions do not need a factual basis to provide ambitious officials with political fodder to attract ideologically sympathetic would-be voters. In the present case, Arizona legislators had appealed to a trinity of traditional conservative concerns: a purportedly overweening federal government straitjacketing needed state action, an allegedly inept national agency whose actions were inadequate and a claimed situation in which someone—especially an “other” in the case of the supposed “wily illegal”—was taking advantage of hard-pressed taxpayers. The confluence of these assertions was sufficient to mobilize the conservative GOP majority in that state’s legislature to create particularly burdensome voter identification/registration requirements, raising the question of whether the United States might witness fifty separate systems, rather than a uniform national rule governing forms of identity needed for the franchise.

While the reasons for the current pass can be viewed as particularly ugly, perhaps cynical electoral political posturing constructed on an “othering” claim with no basis in reality and aimed at ensuring that some citizens do not vote, the temptation for state officials to seek to usurp national functions is endemic to our regime. Our federal structure is meant to facilitate sub-national governments on the argument that they can be much more responsive to localized majorities than our nation can be. This premise is all well and good for democracy when reasonably addressed, but what happens when states elect to supersede or abridge national law or practice, including violating the rights of U.S. citizens in order to appease the (real or imagined) preferences of a local majority?

In the present case, Arizona officials had imposed identification requirements well beyond those required by the United States for partisan reasons and in an effort to mobilize constituents around a bogeyman that did not, in fact, exist. The action not only did not accord with national law, but it also amounted to discrimination against specific targeted groups, although the high court did not reach the latter concern per se in its ruling.

And yet, in its zeal to recognize the legitimate principle of subsidiarity and signal its continuing support for states’ efforts to address the heterogeneity of their populations’ needs (the rationale for federalism), and despite the fact it struck down Arizona’s action, Scalia’s opinion encouraged the state to request permission more formally from the federal government to ask voters for identification not required by the nation. The Court chose to stress the principle that states be permitted latitude, rightly regulated, to reflect local needs, rather than acknowledge the political underpinnings of Arizona’s action. It remains to be seen whether the state will request a variance from national requirements and on what basis it will do so, should it so proceed.

In any case, what is clear now is that this case illustrates two competing principles and one aspiration that underpin our federal system of governance. First, state governments exist to permit a heterogeneous nation broad latitude to recognize its diversity and local needs in ways that the federal government would otherwise find it difficult, if not impossible, to do. But, second, that discretion cannot be unfettered. It must exist within the framework of national sovereignty. Just where the boundaries are in this relationship has ever been the province of debate and sometimes conflict, but there is little doubt in the present case that voter registration requirements fall squarely within the nation’s responsibility, irrespective of whether one considers the specific facts and motivation at issue.

When one ponders more deeply what occurred here, however, it seems plain that the nation has intervened to prevent the usurpation of the political rights of a share of its citizenry — one rightful role assigned our national government in our aspiration to create an enduring federalism. Should the nation have overreached similarly one would hope its states could play their assigned regime role in redressing that misstep. Federalism is a vital part of the checks and balances built into our government structure for the protection and preservation of its citizen rights and freedoms, but it is not foolproof. It depends in good measure on the goodwill and reasonableness of both state and national officials. Arizona’s elected state leaders surely violated that premise in the present case.

Publication Date

June 23, 2013