Look What They Done To My State, Ma
The Roberts court just took a big steaming poop on Dead William Rehnquists’s youthful hijinks in his home state:
The decision in the case of Arizona v. Inter Tribal Council of Arizona (docket 12-71) had major potential for sorting out the dual roles of Congress and the states in deciding eligibility to vote, and that was even more vital in the midst of a new national controversy over efforts among some states to narrow eligibility. The end result will give both sides in that controversy encouragement, but perhaps rather confusing legal guidance.
For those who would look to Congress to keep open, and expand, the right to vote for the presidency and for members of Congress, Justice Antonin Scalia’s opinion for a majority (seven to two on several points, six to three on one other very key point) promised that Congress could pass its own laws on the voter registration process, and states would have to yield to those. In this case, a federal voter registration form only requires would-be voters to declare that they are citizens, but Arizona would also require them to show hard proof that they are. On that point, apparently, Arizona must yield to the federal form, and sign up those who present it.
The part of the Scalia opinion that went the furthest in Congress’s favor — and on which the majority was only six to three, because Justice Anthony M. Kennedy would not join on this point — laid down a seemingly very broad rule on when state election law requirements must yield to those enacted by Congress.
There is a customary rule that courts are to operate on the basic premise that, when Congress and the states act in the same field, state laws won’t be displaced unless Congress explicitly says they must yield. That “presumption against preemption,” in technical terms, does not even apply to the joint enterprise of Congress and the states in regulating elections, according to the new decision. Thus, in this one field, states do not get the benefit of the doubt when they pass election laws that appear to be, or are, different from what Congress has mandated.
You may remember that Robert’s predecessor in the Big Corner Office With the Really Nice View, William Rehnquist, was not down with the browns:
When partisan hirelings show up at polling places next week to challenge the registrations of minority voters, they will be reenacting scenes from Phoenix in the early ’60s, where Rehnquist and other supporters of Goldwater sought to block voting by dark-skinned people suspected of being Democrats. The name of the game — “ballot security” — was the same then as now, as was the pretense of seeking to prevent “vote fraud.”
Testifying before the Senate against Rehnquist’s elevation to chief justice in 1986, former Assistant United States Attorney James Brosnahan described an earlier encounter with him, circa 1962. As a Justice Department lawyer, Brosnahan visited Phoenix polling places to investigate alleged civil rights violations:
“The complaints we received alleged in various forms that the Republican challengers were aggressively challenging many voters without having a basis for that challenge …
“Based on my interviews with others, polling officials, and my fellow assistant U.S. attorneys, it was my opinion in 1962 that the challenging effort was designed to reduce the number of black and Hispanic voters by confrontation and intimidation …
“When we arrived, the situation was tense. At that precinct I saw William Rehnquist, who was serving as the only Republican challenger. The FBI agent and I both showed our identifications to those concerned, including Mr. Rehnquist … The complaints did involve Mr. Rehnquist’s conduct. Our arrival and the showing of our identifications had a quieting effect on the situation and after interviewing several witnesses, we left. Criminal prosecution was declined as a matter of prosecutorial discretion.”
Under oath, Rehnquist denied Brosnahan’s charges, and based on conflicting testimony from other witnesses, the issue was left sufficiently murky for the Republican-dominated Senate to confirm him. But in his 2001 account of that nomination battle, “The Rehnquist Choice,” former Nixon White House counsel John W. Dean concluded that Rehnquist — who said he didn’t “remember” engaging in voter challenges — had almost certainly lied to the Senate.
It’s likely that Rehnquist would have given Judge Edith Jones a slap on the ass for a job well done rather than a potential slap on the wrist.