Republicans’ Dangerous New Election-Cridging Idea

Just months before the November election, the Republican National Committee has launched a new legal attack on the rules governing federal elections. Backed by 24 states, the RNC is seeking an emergency Supreme Court ruling that the U.S. Congress lacks the constitutional authority to regulate presidential elections—congressional elections, yes, but not elections held to elect presidents. The petitioners’ immediate goal is to allow the state of Arizona to impose “proof of citizenship” as a condition of a person’s right to vote for president.

If they are to succeed, the Court will have to abruptly abandon or vindicate a decision it made in 2013—that Congress has the authority to set voter registration rules for presidential elections—within weeks of voting. But even if the lawsuit is dismissed, it risks having some success in sowing doubts about the integrity of the election, highlighting claims of illegal immigrant voting, and laying the groundwork for post-election fraud claims and related legal challenges. (I advised the national Democratic Party on that lawsuit and continued to monitor it as part of a nonpartisan effort to help election administrators prepare for the fall election.)

The RNC’s target in this lawsuit is a federal law, the National Voter Registration Act (NVRA), enacted in 1993 to establish uniform, simplified, and nondiscriminatory voter registration rules for federal elections. The NVRA requires states to provide registration options through their departments of motor vehicles and public welfare agencies and mandates the adoption of procedures to keep voter rolls accurate and current. The law also mandates a federal voter registration form that states must “accept and use.” The form requires proof of citizenship under penalty of perjury and no further documentation.

Read: Should voter registration be automatic?

But in 2022, Arizona passed a law requiring voters to submit a proof of citizenship (DPOC) along with their federal form, such as a passport or birth certificate. Under that law, Arizonans who register to vote using that form but don’t provide a DPOC won’t be able to vote for president at all or vote absentee in any other state elections. The state has never enforced that law for one reason: In 2013, the Supreme Court ruled that the NVRA preempted an earlier version of the requirement — a constitutional law that didn’t allow the state to add its own DPOC order to the certification required by the federal form. That meant the state could impose its own requirement only in state elections. Since then, only Arizona voters who don’t use a federal form to register have had to provide a DPOC.

With more than half the states behind it, Arizona is now arguing, in essence, that the Supreme Court erred because it believes the Constitution grants states exclusive authority to regulate presidential elections. Congress can only force a non-DPOC form on states for congressional elections. The RNC and its allies argue that one source of authority is the Constitution’s Electors Clause, which authorizes states to establish a process for appointing presidential electors and, the petitioners say, gives them the broad authority they seek in presidential registration rules. This reliance on the Electors Clause will be familiar to readers who have followed the controversy over the so-called independent legislative doctrine, which, in its most extreme articulation, somehow allows legislators alleging “fraud” to ignore the popular vote in a presidential election and appoint their own preferred electors. In a 2022 case testing the limits of the clause, the Supreme Court did not go that route.

The petitioners in the current case urge the Court to acknowledge their concerns about illegal voting by undocumented immigrants and to recognize the urgency of giving states constitutional discretion to deal with the problem. In their amicus curiae brief, 24 states argue that such voting is widespread: “The problem of noncitizen voting has become more serious as the number of aliens in the United States has undoubtedly increased.” Such voting was so numerous, they argue, that it has led to Democratic victories in states like Minnesota and North Carolina, both in Senate and presidential elections. The petitioners argue that the states should be able to do something about it, and that the Constitution does not allow the federal government to get in the way of laws like Arizona’s, especially in presidential elections. (In fact, there is no evidence of widespread illegal voting, much less of systematic voter fraud.)

The earlier 2013 decision is one obstacle facing the RNC and its allies, but not the only one. The court has made clear in other cases, such as those involving presidential campaign finance, that Congress does indeed have the authority to regulate presidential elections: “Congress has the authority to regulate presidential elections and primaries,” the court said in Buckley v Valeoconfirming its position in the previous case Burroughs v. United Statesthat Congress can use this power to protect elections from corruption.

The court also upheld Congress’s authority to lower the voting age for presidential elections, prohibit the disqualification of voters in presidential and vice presidential elections for failure to meet state residency requirements, and provide uniform national rules for absentee voting in these elections. Additional federal laws have been in place for years to protect voters from coercion in presidential elections and ensure that members of the armed forces and other overseas voters have access to the ballot.

The NVRA rests on additional constitutional foundations. Congress’s authority to regulate federal voter registration also derives from protections against racial discrimination in the Fourteenth and Fifteenth Amendments. The NVRA includes “findings” in support of its provisions, one of which is that “discriminatory and inequitable registration laws and procedures can have a direct and harmful effect on voter participation in elections for Federal offices and disproportionately harm voter participation of various groups, including racial minorities.”

And the RNC has a serious time problem. According to Purcell principle — the name of a major case decided in yet another Arizona election law controversy — last-minute legal maneuvers to change election law are counterproductive in order to reduce the risk of “voter confusion and the resulting incentive to stay away from the polls.” And yet the RNC has appeared at the Supreme Court, less than three months before the next presidential election, to make a bold constitutional claim and seek “extraordinary” action to allow it to enforce a law enacted two years ago.

In the meantime, thousands of Arizona voters have registered using a federal form without providing DPOC — because federal law does not require them to do so. A last-minute court decision to allow Arizona to enforce DPOC law could throw all of those registrations into question — the kind of chaos and confusion that seriously undermines orderly election administration in the months after the election that the court has counseled the judiciary to try to avoid.

Read: The decision that could strip you of your right to vote

In the wake of the Court’s unfavorable ruling in 2013, the RNC and its state supporters are keenly aware of the aggressive nature of their move. The states are asking the Court to “overturn” or “narrow” — a legal term that means “narrow” — the decision, which Justices Clarence Thomas and Samuel Alito dissented from. The RNC and its allies likely see them as candidates for reconsideration. Justice Neil Gorsuch also joined Thomas in expressing concerns about the “federalization” of state court rulings on election law. Here, then, are three possible votes. The petitioners may think more are persuasive.

But a court victory may not be all the RNC hopes to gain. Even if it loses, the RNC and its co-prosecutors will build a case on post-election claims of illegal voting — specifically, illegal voting by noncitizens. They will charge that the Democratic-controlled federal government will allow it to happen because, as the plaintiffs in Minnesota and North Carolina have argued, it will benefit Democrats. The RNC and its supporters will say they did all they could by warning of the threat and appealing to the Court, and that they were defeated only by the process — loyalty to Purcell principle. As a political calculation, perhaps it works both ways: the courts can be their tool for passing on information about illegal voting, regardless of whether they win or lose.

The strategy of playing political games in the courts is not inconsistent with a long-term legal strategy either. The court may reject “emergency relief” in this new Arizona case, but the justices may still take up the issue in due course. The RNC, under Donald Trump, is seeding the election law landscape with other claims that may have poor prospects for immediate gain but remain available for development and greater success later. In two states, the RNC is filing claims that states cannot process any mailed-in votes after midnight on Election Day, even if they were cast and received within the time periods specified in state law. It is clearly preparing these cases for Supreme Court review. And the “independent state legislative doctrine” has not gone away for good.

The “election wars,” as attorney Richard L. Hasen has called the legal battles over the election, are certain to continue. They have intensified under the pressure of election denial and the former president’s complaints about an election he refuses to concede he lost. Now the Supreme Court will have to decide, regardless of how that conflict plays out in the coming years, whether it will consider new and potentially destabilizing legal claims as election administrators finish preparing for the fall and voting begins.