Republicans’ New, Dangerous Attempt to Break the Election
7 min read
Only months before November’s elections, the Republican National Committee has launched a new legal attack on the rules that govern federal elections. Supported by 24 states, the RNC is seeking, on an emergency basis, a Supreme Court ruling that the United States Congress lacks the constitutional authority to regulate presidential elections—congressional elections, yes, but not elections held to select presidents. The petitioners’ immediate goal is to allow the state of Arizona to impose a “proof of citizenship” requirement as a condition of a person’s right to vote for president.
If they are to succeed, the Court will have to suddenly, with mere weeks left before people start voting, abandon or explain away a decision it rendered in 2013—that Congress has the power to establish rules for voter registration in presidential elections. But even if the suit fails, it risks achieving some success in sowing doubt about the integrity of elections, highlighting claims of illegal voting by immigrants, and laying a foundation for post-election allegations of fraud and related legal challenges. (I have advised the national Democratic Party on this suit and have been further monitoring it as part of nonpartisan work to support election administrators in their preparation for the fall elections.)
The RNC target in this suit is a federal statute, the National Voter Registration Act (NVRA), enacted in 1993 to establish uniform, simplified, and nondiscriminatory rules for the registration of voters in federal elections. NVRA requires states to provide registration opportunities at their motor-vehicle departments and public-assistance agencies, and directed the adoption of procedures to keep voter rolls accurate and current. The law also mandated a federal voter-registration form that states must “accept and use.” The form requires an attestation of citizenship under penalty of perjury and no further documentation.
But in 2022, Arizona passed a law requiring its voters to submit, along with the federal form, documentary proof of citizenship (DPOC), such as a passport or a birth certificate. Under that law, Arizonans who register to vote with this form but do not provide DPOC would be barred from voting at all for president, and from voting by mail in any other election in the state. The state has never enforced the law, for one reason: In 2013, the Supreme Court had held that the NVRA preempted an earlier version of this requirement—constitutional-law-speak for not permitting the state to add its own DPOC mandate to the attestation called for by the federal form. This meant that the state could impose its own requirement only for state elections. Ever since then, only those Arizona voters who do not use the federal form to register have had to supply DPOC.
With more than half the states in its corner, Arizona now argues in effect that the Supreme Court got it wrong, because, in its view, the Constitution confers on the states exclusive authority to regulate presidential elections. Congress can force the form without DPOC on the states for congressional elections only. The RNC and its allies claim as one source of authority the Constitution’s electors clause, which empowers states to establish the process for the appointment of presidential electors and, the petitioners argue, provides them with the broad authority they are seeking over the rules for registering in presidential elections. This reliance on the electors clause will be familiar to readers who followed the controversy over the so-called independent legislature doctrine, which in its most extreme articulation would somehow allow legislatures alleging “fraud” to disregard the popular vote for president and appoint their own preferred electors. In a 2022 case testing the boundaries of the clause, the Supreme Court did not move down that path.
The petitioners in the current case urge the Court to share their worry about undocumented immigrants voting illegally, and to recognize the urgency of giving states the constitutional latitude to deal with it. In their amicus brief, the 24 states allege that such voting is widespread: “The problem of non-citizen voting has gotten worse, as the number of aliens in the United States has undeniably grown.” These votes have been numerous enough, they assert, to have delivered victories to Democrats in states such as Minnesota and North Carolina, in both Senate and presidential elections. In the view of these petitioners, the states should be able to do something about it, and the Constitution does not allow the federal government to get in the way of laws like Arizona’s, specifically in presidential elections. (There is, in fact, no evidence of any such pervasive undocumented-immigrant voting, much less any kind of systematic voter fraud.)
The earlier 2013 decision is one hurdle that the RNC and its allies confront, but not the only one. The Court has made clear in other cases, as in those involving presidential campaign finance, that Congress does indeed have the power to regulate presidential elections: “Congress has the power to regulate Presidential elections and primaries,” the Court said in Buckley v. Valeo, affirming its position in the earlier case of Burroughs v. United States, that Congress can use that power to safeguard those elections from corruption.
The Court has also upheld Congress’s authority to lower the voting age in presidential elections, to prohibit disqualification of voters in presidential and vice-presidential elections for failure to meet state residency requirements, and to provide uniform national rules in those elections for absentee voting. Additional federal laws on the books for years protect against the coercion of voters in presidential elections and ensure that members of the armed forces and other overseas voters have access to the ballot.
NVRA rests on additional constitutional foundations. Congress’s power to regulate federal voter registration also derives from the Fourteenth and Fifteenth Amendments’ protections against racial discrimination. NVRA contains “findings” in support of its provisions, one of which is that “discriminatory and unfair registration laws and procedures can have a direct and damaging effect on voter participation in elections for Federal office and disproportionately harm voter participation by various groups, including racial minorities.”
And the RNC has a significant timing problem. Under the Purcell principle—the name of a relevant case decided in yet another Arizona election-law controversy—11th-hour legal maneuvers for changes in election laws are disfavored, in an effort to reduce the risk of “voter confusion and consequent incentive to remain away from the polls.” Yet the RNC has shown up at the Supreme Court, less than three months prior to the next presidential election, to make a bold constitutional claim and to seek “emergency” action to enable it to enforce a law it passed two years ago.
In the meantime, thousands of Arizona voters have registered with the federal form without providing DPOC—because federal law does not require them to do so. A last-minute decision by the Court to allow Arizona to enforce its DPOC law could throw all of these registrations into question—the sort of chaos and confusion, seriously undermining the orderly administration of the election within months of the election, that the Court has counseled the judiciary to strive to avoid.
Faced with the unfavorable Court ruling in 2013, the RNC and its state supporters are well aware of the aggressive nature of their move. The states are calling for the Court to “overrule” or “cabin”—a legal term for “narrow”—that decision, from which Justices Clarence Thomas and Samuel Alito dissented. The RNC and its allies likely see them as candidates to revisit it. Justice Neil Gorsuch, too, has joined Thomas in stating concern over the “federalization” of state-court rulings in election-law cases. Here, then, are three possible votes. The petitioners might believe more are persuadable.
But winning in Court may not be all that the RNC hopes to gain. Even if they lose, the RNC and its co-litigants will be building a case for post-election claims of illegal voting—illegal noncitizen voting in particular. They’ll charge that the federal government under Democratic control will let it happen, because, as petitioners allege in their cited examples of Minnesota and North Carolina, Democrats will benefit. The RNC and its supporters will say that they did what they could, warning of the threat and appealing to the Court, and that they were defeated only by process—fealty to the Purcell principle. As a political calculation, perhaps it works either way: The courts can be their vehicle for messaging about illegal voting, win or lose.
A strategy to pursue political gamesmanship in the courts is also not incompatible with a longer-term legal strategy. The Court may reject the “emergency relief” in this new Arizona case, but the Justices may still take up this issue in due course. The RNC under Donald Trump’s leadership is seeding the election-law landscape with other claims that may have poor prospects of yielding immediate gain, and yet remain available for development and better success later. In two states, the RNC is bringing claims that states cannot process any mail-in ballots after midnight of Election Day, even if cast and received within the period specified by state law. It is apparently setting up these cases for Supreme Court review. And the “independent-state-legislature doctrine” is by no means gone for good.
The “voting wars,” as the legal scholar Richard L. Hasen has termed the legal battles over elections, appear certain to rage on. They have intensified under the pressures of election denialism and the grievances of a former president over an election he will not concede he lost. Now the Supreme Court will have to decide, whatever course this conflict takes in the years ahead, whether it will entertain novel and potentially destabilizing legal claims as election administrators complete their preparations for the fall, and the voting begins.
