Jeanette Wolfley has posted “You Gotta Fight for the Right to Vote: Enfranchising Native American Voters,” forthcoming in the University of Pennsylvania Journal of Constitutional Law.
Here is the abstract:
Five decades ago, the Congress passed the Voting Rights Act of 1965. Since its passage, the Voting Right Act has created the opportunity to vote for many racial and language minorities across the country, and has survived many challenges until 2013. The U.S. Supreme Court issued two decisions involving voting rights in its 2012-2013 term. On June 25, 2013, in Shelby County v. Holder, a divided Supreme Court struck down Section 4 – a key provision of the 1965 Voting Right Act (VRA) – as unconstitutional. On June 17, 2013, one week before the Shelby County decision, the Court decided another voting rights challenge. In Arizona v. Inter Tribal Council of Arizona, Inc., the Court held that the federal National Voter Registration Act of 1993 (NVRA) preempted Arizona’s requirement that voters provide proof of citizenship in order to register to vote. Certainly, this decision was not as symbolic as Shelby County, but nonetheless is significant for minority voters and voters in general. In the aftermath of Shelby County, many voting rights litigators and scholars are contemplating what the case means for the future of Black and Latino minority voting rights across the country. To date, however, scholars’ and practitioners’ reaction to and focus on the Shelby County decision has not considered or identified its impact on Indian voters or reservation residents. Accordingly, this Article seeks to fill the void by examining the Shelby County and Inter Tribal Council decisions and provides some insight and effective responses with regard to their impacts on Native American voters across Indian country.
Here is the opinion. Congrats to Patricia Millett.
Briefs and other materials are here.
Adam Liptak wrote about my favorite exchange of the day:
The question for the justices was whether that state law conflicted with the National Voter Registration Act of 1993, which allows voters to register using a federal form that asks, “Are you a citizen of the United States?” Prospective voters must check a box yes or no, and they must sign the form, swearing that they are citizens under penalty of perjury.
Several members of the court’s conservative wing indicated that the state was free to impose additional requirements to make sure only citizens vote.
Justice Antonin Scalia said the federal form was inadequate. “So it’s under oath,” he said. “Big deal. If you’re willing to violate the voting laws, I suppose you’re willing to violate the perjury laws.”
“Under oath,” he added, “is not proof at all. It’s just a statement.”
Patricia A. Millett, a lawyer for several groups challenging the Arizona law, responded that “statements under oath in criminal cases are proof beyond a reasonable doubt” sufficient to lead to the death penalty.
She added that tens of thousands of people had been rejected from the registration rolls because of the Arizona law, though there was no evidence that they were not citizens.
Briefs and other materials are here.
Here is today’s order.
The Court denied cert in Oravec v. Cole (page 2), and in Marceau v. Blackfeet Housing Authority (page 10).
And issued this interesting order in Arizona v. Inter-Tribal Council of Arizona (page 1):
The motion of Jesus M. Gonzalez, et al. to correct case caption is denied.
Here is today’s order list.
Briefs are on SCOTUSblog here.
I’ve defended the Office of Solicitor General in the past, lamented that despite their best efforts, they keep losing Indian cases as the tribal trustee. But lately, it seems like the SG is using Indian tribes as shills to clean up some other messes. They used the Tohono O’odham Section 1500 CFC suit to clean up that mess — they waited for years for the right case, and when the Indian cases came, that was the right time. The OSG may have thought that the tribal contract support costs cases were the right cases to clean up the mess with the Congressional Judgment Fund (they were wrong).
Now another tribe has given the government a chance to clean up another mess — attorney fees under the Equal Justice Act. The case is Pecore v. United States (Pecore Cert Petition, lower court materials here). I know next to nothing about the EJA, but if the petition is right, and there is a serious circuit split, then the government might jump right in. We’ll know at the end of next month when the response to the cert petition is due. If the government acquiesces, we must all realize they’re doing it because the petitioner is tribal. Tribal interests are at the bottom of the barrel when it comes to favored, repeat parties at the Supreme Court.
A footnote — recall the Arizona cert petition on the next major immigration case filed earlier this summer. In the lower court, when Arizona had no say in the caption, the case was called Gonzales v. Arizona. Gonzales was the lead plaintiff, and a lot of people and groups signed on. Now that Arizona has lost below, they rewrote the caption. The case is now captioned Arizona v. Inter Tribal Council of Arizona. All the rest of the respondents are listed in alphabetical order, including Gonzales, except the tribal respondents, who are listed first. If the Court hears this case, it’ll be an Indian-related case first and foremost. Arizona knows what it’s doing.
Here is the cert petition and the case is now captioned Arizona v. Inter Tribal Council of Arizona:
Arizona Cert Petition
Did the court of appeals err 1) in creating a new, heightened preemption test under Article I, Section 4, Clause 1 of the U.S. Constitution (“the Elections Clause”) that is contrary to this Court’s authority and conflicts with other circuit court decisions, and 2) in holding that under that test the National Voter Registration Act preempts an Arizona law that requests persons who are registering to vote to show evidence that they are eligible to vote?
Lower court opinion here.