For Ariz., Scalia Offers Alternate Path Toward Proof of Citizenship

By Betty Wang, JD on June 18, 2013 | Last updated on March 21, 2019

While Justice Antonin Scalia is known as an outspoken conservative, he did not approve of Arizona's law requiring proof of citizenship for voters. The opinion he penned for the U.S. Supreme Court, however, suggests a potential avenue for Arizona to get its way.

In a 7-2 ruling, the Court struck down an Arizona voter-registration provision enacted by voters in 2004, because it is pre-empted by the National Voter Registration Act (NVRA), a federal law passed in 1993.

The NVRA requires voters to simply check a box on a form, swearing by penalty of perjury that they're citizens of the United States. But Arizona's law went far beyond this.

Why Arizona's Law Failed

Arizona's Proposition 200 required proof of documentation -- such as a driver's license, birth certificate, or passport -- that would be very difficult for illegal immigrants especially to obtain. Critics saw this as another attempt by Arizona to suppress minority votes and make life tougher for immigrants.

Writing for the Court's majority, Scalia was also critical of the law, as it ran into issues with the Constitution's Supremacy Clause. That clause states that federal law trumps state law if the laws' provisions conflict.

As Scalia explained in Arizona v. Inter Tribal Council of Arizona, the NVRA requires that states "accept and use" the federal form. In spite of this, Arizona had been rejecting forms when its additional state-mandated proof-of-citizenship documentation was not met.

Scalia, a fan of plain language, wrote that "accept and use" did not simultaneously mean "reject and return."

Arizona's Options

But Scalia also wrote that Arizona has "alternative means of enforcing its constitutional power to determine voting qualifications."

Namely, the state could petition the federal Election Assistance Commission to change the form's requirements, Scalia suggested. If the EAC fails to act, the state could then "seek judicial review of the EAC's decision under the Administrative Procedure Act."

That's exactly what Arizona will probably do, the state's attorney general told the Associated Press after the ruling's release on Monday.

So while Justice Scalia "appeared to sympathize with Arizona's goal of requiring better proof of citizenship" for voters, as USA Today reported, it seems the conservative jurist ultimately voted based on the federal law's supremacy. Four other states -- Alabama, Georgia, Kansas, and Tennessee -- also have proof-of-citizenship laws similar to Arizona's.

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