Gonzalez v. Arizona Rests upon a False Premise

by P.A. Madison on May 14th, 2012

The recent Ninth Circuit en banc decision in Gonzalez v. Arizona illustrates current erroneous understanding of the Elections Clause under Section 4 of Article I. At issue in this case was Arizona’s Proposition 200 that required prospective voters in Arizona to provide proof of U.S. citizenship in order to register to vote in both State and Federal elections, along with the requirement of registered voters to show identification to cast a ballot. Additionally, Proposition 200 required the County Recorder to “reject any application for registration that is not accompanied by satisfactory evidence of United States citizenship.”

The court held Arizona’s Proposition 200 was preempted by the Federal National Voter Registration Act of 1993 (NVRA) because the NVRA provides that “[e]ach State shall accept and use” the Federal Form “for the registration of voters in elections for Federal office.” The court saw Proposition 200 creating a conflict with the NVRA because Arizona could reject the use of the Federal Form to register to vote in Federal elections due to insufficient proof of citizenship.

Arizona’s Proposition 200 raises no constitutional issues or is in conflict with any valid federal law for the simple reason the National Voter Registration Act of 1993 is void due to the lack of any authority to impose voter registration standards upon the States for Federal elections.

The court makes a lame effort to justify federal voter registration by declaring “the Elections Clause empowered Congress to enact the NVRA” and, “under Congress’s expansive Elections Clause power, we must hold that the registration provision, when applied to the Federal Form, is preempted by the NVRA.” The Elections Clause under Section 2, Article I reads:

The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.

It is well established by history and practice that the “Times, Places and Manner of holding Elections” has absolutely nothing whatsoever to do with voter registration or voter qualifications but solely limited to “Times, Places and Manner” of holding Elections. This clause was adopted to insure Congress could act if a State had adopted an inconvenient time for an election (or failed all together), or fix the place to a single inconvenient location. The manner of holding elections is limited to only how votes shall be recorded, e.g., ballot or viva voce.

The question of prescribing qualifications to vote in Federal elections did come up during the constitutional convention with some supporting limiting suffrage to only freeholders but the idea of federally establishing voter qualification’s was abandoned out of fear it would had arouse more opposition to ratifying the Constitution. Thus, it was agreed to accept the qualifications each State prescribed in order to vote in both State and Federal elections.

Hamilton in Federalist No. 60 said, “prescribing qualifications of property either for those who may elect or be elected … forms no part of the power to be conferred upon the national government,” and “[i]ts authority would be expressly restricted to the regulation of the TIMES, the PLACES, the MANNER of elections.”

Rep. John A Bingham of Fourteenth Amendment fame, summed up the history of the question in 1871 best by stating the “qualification of electors and the manner of holding or conducting elections are as distinct from each other as light and darkness.”

In an 1871 House Report on the very subject, Bingham was explicit:

That the House of Representatives shall be composed of members chosen every second year by the people of the several States, and the electors in each State shall have the qualifications requisite for electors of the most numerous branch of the State Legislature.

This provision has always been construed to vest in the several States the exclusive right to prescribe the qualifications of electors for the most numerous branch of the State Legislature, and therefore for members of Congress. And this interpretation is supported by section four, article one, of the Constitution, which provides- “That the time, places, and manner of holding elections for Senators and Representatives shall be prescribed in each State by the Legislature thereof; but the Congress may at anytime by law make or alter such regulations except as to the place of choosing Senators.”

Now, it is submitted, if it had been intended that Congress should prescribe the qualification of electors, that the grant would have read: the Congress may at anytime by law make or alter such regulations, and also prescribe the qualification of electors, &c. The power, on the contrary, is limited exclusively to the time, place, and manner and does not extend to the qualification of the electors. This power to prescribe the qualification of electors in the several States has always been exercised, and is to-day, by the several States of the Union; and we apprehend, until the Constitution shall be changed, will continue to be so exercised, subject only to the express limitations imposed by the Constitution upon the several States, before noticed (15th Amendment).

Because voter qualification and registration for both State and Federal elections falls under the exclusive domain of each State, explains why Congress never attempted to say what qualifications is required in order to register to vote in Federal elections. Congress could have declared freemen or women qualified to vote in Federal elections but they did not, not because they neglected to do so, but because they had no constitutional authority to say who can, or cannot, vote in Federal elections.

On the other hand, States exercised full authority over voter registration and indeed could include colored voters or women suffrage in Federal election with the State of Wyoming leading the way in giving full suffrage rights to women long before there was a Nineteenth Amendment.

To conclude, Proposition 200 preempts National Voter Registration Act of 1993 because NVRA is not authorized by the Constitution.


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6 Responses | Leave a Comment
  1. EscapeHatch says:

    I am confused here. If Section 2, Article 1 says “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators” and that Congress can make or modify laws regulating election EXCEPT regarding the place of choosing, how is Congress prohibited from making law prescribing how an election is to be conducted in the States?

    • Big Cloud says:

      Congress can set a date for federal voting, can establish voting districts for places, and declare the manner of conducting the election to be by paper ballot, electronic, or both. None of this has anything to do with what qualifications a voter must have to cast a ballot.

    • Glenn says:

      how is Congress prohibited from making law prescribing how an election is to be conducted in the States?

      As already pointed out, requiring voters to do something in order to vote (in this case proof of citizenship) is unrelated to the manner in which an election is to be conducted. Requiring certain proof to vote is an elector qualification for which only state law can mandate. Conducting an election has always been a separate thing from voter prerequisites.

    • Gordon says:

      how is Congress prohibited from making law prescribing how an election is to be conducted in the States?

      It isn’t being asserted Congress is prohibited from regulating the manner of how federal elections shall be conducted. The question is where can they claim the power to define voter qualifications if such qualifications were never held to be related to the manner of holding an election.

      So far I have not seen any evidence of the power being lodged with Congress.

  2. Milner says:

    How could the court get it so wrong?

    • Brian says:

      It is just amazing how the federal government can continually adjucate itself more powers in complete contridiction to the constitution it is supposed to uphold.

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