June 17th, 2013 - 5:35 pm
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.
