Posted on 06/17/2013 8:03:34 PM PDT by jazusamo
Something perverse happened after the Supreme Court’s decision today invalidating citizenship-verification requirements in Arizona for registrants who use the federal voter registration form. The Left knows they lost most of the battle, but are still claiming victory. That’s what they do. Election-integrity proponents and the states are saying they lost, but don’t realize they really won.
The Left wins even when they lose, and conservatives are often bewildered and outfoxed in the election-process game.
Earlier today, I called the decision a nothingburger. After re-reading the case and reflecting a bit more, it’s clear that the decision was a disaster for the Left and their victory cackles are hollow — and they know it.
Worse, conservatives dooms-dayers who have never litigated a single National Voter Registration Act case have taken to the airwaves, describing the case as a disaster which invites illegal-alien voting.
In the last year, I’ve litigated five NVRA cases and worked on the preemption issues for years, and there is more to cheer in today’s opinion than there is to bemoan. Those complaining about the opinion don’t understand what the Left’s goal was in this case: total federal preemption. On that score, Justice Scalia foiled them; indeed, the decision today was a huge war won, even if the small Arizona battle was lost.
From my time in the Justice Department Voting Section, I can remember intimately the wars over some of the preemption issues decided today.
The Left essentially believes that anyone who fills out a federal Election Assistance Commission registration form should be allowed on the rolls, no questions asked. There were complex fights over the “citizen check-off box” issues, with the Left wanting the box rendered meaningless, and conservatives and election-integrity proponents believing a registration cannot be processed until a registrant affirms on the box that he or she is a citizen.
Before the decision today, here is what the Left wanted:
● Invalidation of Arizona’s requirement that those submitting a federal form provide proof of citizenship with their federal form. Mind you, the citizenship-proof requirement is NOT part of federal law and the Election Assistance Commission does NOT require it in the form they drafted.
● Invalidation of state citizenship-verification requirements when a state voter registration form is used (yes, such forms exist separate from the federal requirement) on the basis of federal preemption. They wanted the Arizona case to invalidate all state citizenship-verification requirements.
● Automatic registration if a registrant submits a completed federal EAC approved registration form, no questions asked.
● Federal preemption on the ability for states to have customized federal EAC-approved forms that differed from the default EAC form.
● Federal preemption over states, like Florida and Kansas, looking for independent information on citizenship to root out noncitizens from the voter rolls. Again, the Left wanted the federal EAC form to be the no-questions-asked ticket to the voter rolls.
So what is the score on these five goals after Justice Scalia’s opinion today? Election-integrity advocates are batting .800; left wing groups, .200. And the most insignificant issue of the five is the one issue the Left won. Justice Scalia foiled 4 of 5 of their goals, and the 4 biggest ones.
How does it work? The decision today uncorks state power. The Left wanted state power stripped and they lost.
First, Arizona can simply push the state forms in all state offices and online, and keep those federal forms in the back room gathering dust. When you submit a state form, you have to prove citizenship. Thanks to Justice Scalia, that option is perfectly acceptable. Loss for the Left. Victory for election integrity.
You might say, “That’s a small victory.” Nonsense. This was the whole ballgame to the groups pushing the Arizona lawsuit. They lost, period.
Next, when voters use a state, as opposed to a federal, form, they can still be required to prove citizenship. The federal form is irrelevant in that circumstance.
After the decision today, states have a green light to do double- and triple-checking even if a registrant uses the federal form. The Left wanted the submission of a federal form to mean automatic no-questions-asked registration. This is a big loss for the Left because now states can put suspect forms in limbo while they run checks against non-citizen databases and jury-response forms. Another significant victory in today’s decision. The Left wanted to strip them of that double-checking power.
The decision today is a great example of how conservatives can be distracted by squirrels running past. It is understandable and forgivable because they aren’t daily immersed in the long-term election-process agenda of the left-wing groups. Nor do they daily involve themselves with the details of election process. But having been in the “preemption wars” for nearly a decade, I can assure you this case is a big win, even if it doesn’t appear so at first glance.
I suggest that one of you post the oral arguments in the Prop 8 case. A transcript should be required reading for every FReeper. It lays out the roadmap to regain marriage and shows all the weaknesses in the Same Sex Marriage crowds' arguments. We need to be on the march, get off our haunches and stop whining and start winning.
Jacquerie, I pinged you to this important states' rights thread.
13 are in Democrat control and we can presume they'll do little to nothing, but it does open up an opportunity to hammer them with voter integrity issues.
That leaves 13 states in mixed control. Again, the GOP has a major opportunity here to make citizenship matter. Now’s the time to do it.
Yes the author has a point, but lets say Arizona does this.
The next lawsuit will follow the same track, and they will spend hundreds of thousands of dollars defending it.
I’m still combing over Thomas’ dissent. When he mentioned the 17th Amendment, I put it aside for another evening.
Okay, then let's change my statement to say that Federal law takes precedence over state law with regard to elections for Federal offices.
Over in Lake County Indiana the Democrats once used the list of names from a Puerto Rican graveyard!
When I saw the title yesterday and the ensuing meltdown I went straight to the opinion.
After skimming through it the first run I realized that Scalia captured the moment to give the left a meaningless and inevitable “victory” all the while crafting a huge zone of protection for states to protect the integrity of elections.
It was really brilliant.
The bottom line was that they struck down how AZ was doing it, but simultaneously told them and every other state how the very same objective could be done constitutionally under existing federal law.
Thanks for posting this, hopefully it will help calm some of yesterday’s angst...
I think this was more or less a dumb ass thing to say. He admits his first reaction was to say this was a nothing decision, and he is in a position to know. Why should we be taken to task for having an immediate negative reaction as well.?
This guy's bedside manor needs a little polishing..., way to insult people who share your ideology.
Well..., I’m hoping not too. I think this guy is on to something, but I’m far from completely placated by his comments.
Our AZ A.G. Tom Horne just basically said the same thing in an email blast and a short televised Q/A. He’s a good guy.
Thanks. I hope this guy was right, and it’s nice to know others think he may be, especially if they’re in a position to know.
Let me say I did see articles about this fraud...and that people were selling their phones, with the encouragement of those distributing them, to buy drugs, shoes and anything else they might want. People were boasting they had as many as 30 of these phones at home....there was nothing regulating who got them.
Those who were promoting the phones ‘were paid’ based on how many they signed up or distributed. The Tax payer is the one who paid for all of this nonsense....funds were automatically deducted thru the phone companies on your bill.
Only one worse in Indiana is the Carson seat in Indy that had voting machines missing for days and ended up with over 100% of eligible registered voters participating
If you want link to stories fr mail me and I’ll dig thru the stash
IN AG is right with you. Keep the faith. At least 20 states have already taken steps with your leadership !
I'm working on another project right now and need to focus. I'll read the Arizona decision more closely when I can control my disgust.
We note, however, that while the NVRA forbids States to demand that an applicant submit additional information beyond that required by the Federal Form, it does not preclude States from "deny[ing] registration based on information in their possession establing the applicant's ineligibility."So while Arizona must accept the federal form, it can also put that form on hold while it examines any records in the state's possession (and presumably to which it has access) that indicate that the applicant is not a U.S. citizen. That information can come from any number of sources: jury response forms, arrest records, deportation records, etc. In short, the burden is on the State to prove that an applicant is ineligible rather than the applicant having to prove that he is eligible. Thus the federal form sits "in limbo" while the State takes time to do some research.
Tom Horne is OK.
Glad to here it.
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