Arizona v. Inter Tribal Council: Opinions Have Layers

by - June 18, 2013

INNER LAYER (MEDIUM-TERM): Scalia's opinion opens the door to an interesting procedural possibility; namely, litigation against the EAC (which is still the agency of record with regard to the National Voter Registration Act) under the Administrative Procedure Act. Such proceedings would be used to allow a court to review the agency's decision (or failure to decide) on proof of citizenship requests like Arizona's ... and, as Scalia notes, could raise the "nice point" of what to do about an agency that has not taken an action because it is unable to do so - the EAC's current status given the lack of Commissioners. [UPDATE: This is indeed what Arizona has in mind.]
INNERMOST LAYER (LONG-TERM): The big issue here - and one which I suspect we will see for years to come - is the distinction Scalia draws between the province of the federal government (the mechanics of registration) and that of states (qualifications to vote)

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