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Herbert London: The Supreme Court and Voter Registration Law

Recently the Supreme Court delivered a rebuke to Governor Jan Brewer and the citizens of Arizona arguing in a 7 to 2 majority that the state violated federal law when it added a proof of citizenship requirement to a federal voter registration form almost a decade ago.

According to the majority decision the high court ruled that in areas where Washington holds constitutional authority – as is the case with immigration and the rules for federal elections – states may not override Congressional judgment.

In 2004 voters in Arizona approved a state initiative that required proof of citizenship when residents sought to vote. That proof could be a passport or a birth certificate. Under federal law, registrants only need to sign a form attesting to voter eligibility under penalty of perjury.

According to Arizona’s attorney general, Tom Horne, in the last year more than 200 people were caught having registered to vote without holding citizenship. Nonetheless, Justice Antonin Scalia, in his majority decision, held that Arizona state law interfered with Congress’s prerogatives. As he noted, federal law “forbids states to demand that an applicant submit additional information beyond that required by the federal form.”

Presumably anyone in Arizona who wants to vote illegally will ask for the federal form. Arizona officials remain free to crosscheck information that registrants supply on the federal form to ensure accuracy, but considering actual voting practice this is unlikely.

In his dissenting opinion Judge Alito wrote: “The Court reads an ambiguous federal statute in a way that brushes aside the constitutional authority of the States and produces truly strange results.” The strange result to which he refers is opening the gate for illegal voting. There is no doubt the National Voter Registration Act, also known as the motor voter law of 1993, sustains federal authority over voting provisions, but the argument that proof of citizenship is a burden that discriminates against certain groups is absurd on its face. The only group it discriminates against is illegal voters, those specifically mentioned in the Constitution as ineligible to vote.

Moreover, this court decision invites the cynical conclusion that elections are rigged, that the very integrity of elections can be called into question. As the last presidential election indicated, places like Colorado had voting districts with 140 percent participation and Philadelphia had districts in the inner city that voted 100 percent for President Obama. You mean, there wasn’t one error, one misplaced vote? One might add, what happened in those instances where voter fraud was unambiguous? Who was penalized and how many of these cases were merely dismissed?

The Arizona law wasn’t foolproof, but it at least provided another appropriate hurdle through which the illegal voter must jump. That is now gone. Attorney General Holder applauded the decision and as one might expect wrote an amicus brief challenging the Arizona law.

Needless to say – although I will – every American who has a right to vote should be encouraged to do so. No one, regardless of race or ethnicity, should be denied access to the polls. But that does not mean we should allow, through foolish interpretation of federal law, an opening for fraud in the form of illegal voting.

I am sure Justice Scalia didn’t have that in mind with his majority decision. Sometimes, however, a narrow interpretation of the law can lead to unanticipated baneful results.

Herbert London is President of the London Center for Policy Research, a senior fellow at the Manhattan Institute and author of the book The Transformational Decade (University Press of America).

The views expressed by commentators are solely those of the authors. They do not necessarily reflect the views of this station or its management.