Why Would the Court’s Liberals Go Along with Justice Scalia’s Time Bombs in Arizona Elections Case?

by - June 18, 2013

Yesterday’s opinion in Arizona v. Inter-Tribal Council is full of time bombs from Justice Scalia. Not only does he explain how Arizona might go to court to get an order compelling the FEC to alter the federal form to conform with the state’s citizenship requirements, he also draws a broad distinction between federal power to set the manner of elections and its lack of power to prescribe voter qualifications.  (This was the main point of my Daily Beast piece yesterday, as well as Marty Lederman’s SCOTUSBlog post and much in line with Lyle Denniston’s analysis.) Justice Scalia’s footnote all but burying a key part of Oregon v. Mitchell on the right of Congress to require states to allow 18 year olds to vote in federal elections is sure to give states new powers to challenge federal voting rules.  He suggests that arguments such as Arizona’s should be recast as challenges to registration rules and that they may have much greater success.
It is true that all of the Scalia language in yesterday’s opinion (on pages 13-17) is full of “might” and “could” language—most of it is dicta. Justice Alito notes those facts in the dissent. But this is scary stuff for those who worry about some states cutting back on voting rights. So the mystery to me is: why would the liberals on the Court go along with all this?  Why not just join Justice Scalia’s opinion in part?  After all, as a former clerk to Justice O’Connor emailed me, it looks like Justice Scalia is trying to provide a roadmap for states to implement voter id laws over federal objection.

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