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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.
Uh, aren’t the powers pushing wide open voter registration going to send out hundreds of thousands of “voting activists” all over the nation armed with bundles of Federal forms ?
I’ll bet you see AZ flooded with Federal forms with no citizenship proof required.
Am I missing something ?
It's a good thought, I can certainly see that being the case.
Bump for a good thought and theory.
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ping for later
Ok, great, if what he says is true. But how do we know states will use their form over the federal form (gathering dust in the back room, like he says)? What’s to stop libs from starting all over and suing states to force them to use the federal form ? What’s to stop lib 501c3’s or 4’s from handing out federal forms 3 or 4 days before an election and telling people to use them over state forms?
Exactly.
Thanks for posting.
See Adams’ opinion about AZ using state forms. Is that what you mentioned earlier today?
Excellent analysis by Adams, as usual. Thanks for the ping.
I’ve wondered about this decision today, particularly the fact that Scalia took the lead.
Agree completely. J. Christian Adams is great.
(( ping ))
As I see it there’s nothing to stop a state from using the fed form and I’d bet some blue states will or at least some dyed-in-the-wool areas of some blue states will.
On the other hand red states or red areas in all states are not required to use the fed form.
I think it’s a win, as Adams has stated.
Agreed, and you’re most welcome.
Doesn’t matter. In those states, they’ll register every illegal/dead person/dog/zombie they can regardless of what forms they’re using. The decision is only relevant in conservative states, or at least in states in which the voter registrars are honest (same thing).
The decision is bad, it sets a precedent that FEDERAL LAW CAN USURP STATES IN VOTING. Think about it, all the feds have to do is create another alphabet group to MONITOR AND CONTROL state elections, that require federal forms, for monitoring purposes.
They will just change more rules. After the current govs abusive use of post 9-11 national security measures, anyone that thinks the left won’t exploit any advantage they have is living in a sane world.
Now that is right thinking.
It was. Nice to see Adams’ thoughts, too.
Are the states required to accept the federal form at all? The decision may just say that if they accept it, they may not require proof of citizenship, not that they must accept it.
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