The Independent View: Supreme Court Could Take Another Election Process Case

This is a continuation of prior posts.

Kobach v. EAC is getting close to the end of briefing and a decision on whether to take the case. The case is on the question of federal vs. state power in setting the rules for federal elections.,

Kansas and Arizona tried to force the federal government to require those who register to vote using a simple federal form for voter registration include proof of citizenship if the voter is a KS or AZ resident. This case concerns only whether AZ or KS have to accept federal form without additional proof of citizenship. For those who register with AZ or KS forms, the states can still demand proof of citizenship. But if a citizen uses any any other form, mailed or online, they would only be able to vote for state candidates.

The lower court sided with the states, but the federal government won with a reversal on appeal. The case could well be headed to the Supreme Court as a major dispute over federal versus state power in voting.

From the opinion’s conclusion:

Kobach’s argument that the states’ Qualifications Clause powers trump Congress’ Elections Clause powers is foreclosed by precedent. In ITCA, the Court clearly held that Congress’ Elections Clause powers preempt state laws governing the “Times, Places and Manner” of federal elections, including voter registration laws. 133 S. Ct. at 2253. Citing the Federalist Papers, the Court noted that the Framers expressly rejected giving the states exclusive authority to regulate federal elections because “an exclusive power of regulating elections for the national government, in the hands of the State legislatures, would leave the existence of the Union entirely at their mercy.” Id. Only the dissenting opinion by Justice Thomas endorses the theory that Arizona and Kansas press before this court. Id. at 2266-69 (Thomas, J., dissenting).

The dissent proves the point….

In sum, the EAC had valid authority under HAVA to sub-delegate decision making authority to its Executive Director relating to the contents of the Federal Form. Under the unique circumstances of this case (involving a quorum-less EAC), an appeal from the Executive Director’s decision to deny the states’ requests to modify the contents of the Federal Form was impracticable. Consequently, the Executive Director’s decision constitutes final agency action. And that action—which fell within the bounds of the sub delegation that the EAC issued when it had a quorum—was procedurally valid.

Contrary to Kobach’s claims, the NVRA does not impose a ministerial duty on the EAC to approve state requests to change the Federal Form. The Executive Director’s denial of the states’ requests survives an APA review, and the states’ constitutional claims are unavailing. We therefore REVERSE the ruling of the district court and REMAND the case to the district court with instructions to vacate its order instructing the EAC to modify the Federal Form.

Rick Hasen of Election Law Blog thinks there’s a pretty good chance the Supreme Court agrees to hear it.