Arizona v. Inter Tribal Council of Ariz., Inc. , 133 S. Ct. 2247 ( 2013 )

(Slip Opinion) OCTOBER TERM, 2012 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
ARIZONA ET AL. v. INTER TRIBAL COUNCIL OF
ARIZONA, INC., ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE NINTH CIRCUIT
No. 12–71. Argued March 18, 2013—Decided June 17, 2013
The National Voter Registration Act of 1993 (NVRA) requires States to
“accept and use” a uniform federal form to register voters for federal
elections. 42 U. S. C. §1973gg–4(a)(1). That “Federal Form,” devel-
oped by the federal Election Assistance Commission (EAC), requires
only that an applicant aver, under penalty of perjury, that he is a cit-
izen. Arizona law, however, requires voter-registration officials to
“reject” any application for registration, including a Federal Form,
that is not accompanied by documentary evidence of citizenship. Re-
spondents, a group of individual Arizona residents and a group of
nonprofit organizations, sought to enjoin that Arizona law. Ultimate-
ly, the District Court granted Arizona summary judgment on re-
spondents’ claim that the NVRA pre-empts Arizona’s requirement.
The Ninth Circuit affirmed in part but reversed as relevant here,
holding that the state law’s documentary-proof-of-citizenship re-
quirement is pre-empted by the NVRA.
Held: Arizona’s evidence-of-citizenship requirement, as applied to Fed-
eral Form applicants, is pre-empted by the NVRA’s mandate that
States “accept and use” the Federal Form. Pp. 4–18.
(a) The Elections Clause imposes on States the duty to prescribe
the time, place, and manner of electing Representatives and Sena-
tors, but it confers on Congress the power to alter those regulations
or supplant them altogether. See U. S. Term Limits, Inc. v.
Thornton, 514 U. S. 779, 804–805. This Court has said that the
terms “Times, Places, and Manner” “embrace authority to provide a
complete code for congressional elections,” including regulations re-
lating to “registration.” Smiley v. Holm, 285 U. S. 355, 366. Pp. 4–6.
(b) Because “accept and use” are words “that can have more than
2 ARIZONA v. INTER TRIBAL COUNCIL OF ARIZ. INC.
Syllabus
one meaning,” they “are given content . . . by their surroundings.”
Whitman v. American Trucking Assns., Inc., 531 U. S. 457, 466.
Reading “accept” merely to denote willing receipt seems out of place
in the context of an official mandate to accept and use something for
a given purpose. The implication of such a mandate is that its object
is to be accepted as sufficient for the requirement it is meant to satis-
fy. Arizona’s reading is also difficult to reconcile with neighboring
NVRA provisions, such as §1973gg–6(a)(1)(B) and §1973gg–4(a)(2).
Arizona’s appeal to the presumption against pre-emption invoked
in this Court’s Supremacy Clause cases is inapposite. The power the
Elections Clause confers is none other than the power to pre-empt.
Because Congress, when it acts under this Clause, is always on notice
that its legislation will displace some element of a pre-existing legal
regime erected by the States, the reasonable assumption is that the
text of Elections Clause legislation accurately communicates the
scope of Congress’s pre-emptive intent.
Nonetheless, while the NVRA forbids States to demand that an ap-
plicant submit additional information beyond that required by the
Federal Form, it does not preclude States from “deny[ing] registra-
tion based on information in their possession establishing the appli-
cant’s ineligibility.” Pp. 6–13.
(c) Arizona is correct that the Elections Clause empowers Congress
to regulate how federal elections are held, but not who may vote in
them. The latter is the province of the States. See U. S. Const., Art.
I, §2, cl. 1; Amdt. 17. It would raise serious constitutional doubts if a
federal statute precluded a State from obtaining the information nec-
essary to enforce its voter qualifications. The NVRA can be read to
avoid such a conflict, however. Section 1973gg–7(b)(1) permits the
EAC to include on the Federal Form information “necessary to enable
the appropriate State election official to assess the eligibility of the
applicant.” That validly conferred discretionary executive authority
is properly exercised (as the Government has proposed) to require the
inclusion of Arizona’s concrete-evidence requirement if such evidence
is necessary to enable Arizona to enforce its citizenship qualification.
The NVRA permits a State to request the EAC to include state-
specific instructions on the Federal Form, see 42 U. S. C. §1973gg–
7(a)(2), and a State may challenge the EAC’s rejection of that request
(or failure to act on it) in a suit under the Administrative Procedure
Act. That alternative means of enforcing its constitutional power to
determine voting qualifications remains open to Arizona here.
Should the EAC reject or decline to act on a renewed request, Arizona
would have the opportunity to establish in a reviewing court that a
mere oath will not suffice to effectuate its citizenship requirement
and that the EAC is therefore under a nondiscretionary duty to in-
Cite as: 570 U. S. ____ (2013) 3
Syllabus
clude Arizona’s concrete-evidence requirement on the Federal Form.
Pp. 13–17.
677 F. 3d 383, affirmed.
SCALIA, J., delivered the opinion of the Court, in which ROBERTS,
C. J., and GINSBURG, BREYER, SOTOMAYOR, and KAGAN, JJ., joined, and
in which KENNEDY, J., joined in part. KENNEDY, J., filed an opinion con-
curring in part and concurring in the judgment. THOMAS, J., and ALITO,
J., filed dissenting opinions.
Cite as: 570 U. S. ____ (2013) 1
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash-
ington, D. C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
_________________
No. 12–71
_________________
ARIZONA, ET AL., PETITIONERS v. THE INTER
TRIBAL COUNCIL OF ARIZONA, INC., ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT
[June 17, 2013]
JUSTICE SCALIA delivered the opinion of the Court.
The National Voter Registration Act requires States to
“accept and use” a uniform federal form to register voters
for federal elections. The contents of that form (colloquially
known as the Federal Form) are prescribed by a federal
agency, the Election Assistance Commission. The Federal
Form developed by the EAC does not require documentary
evidence of citizenship; rather, it requires only that an
applicant aver, under penalty of perjury, that he is a
citizen. Arizona law requires voter-registration officials to
“reject” any application for registration, including a Fed-
eral Form, that is not accompanied by concrete evidence of
citizenship. The question is whether Arizona’s evidence-
of-citizenship requirement, as applied to Federal Form
applicants, is pre-empted by the Act’s mandate that States
“accept and use” the Federal Form.
I
Over the past two decades, Congress has erected a
complex superstructure of federal regulation atop state
voter-registration systems. The National Voter Registra-
tion Act of 1993 (NVRA), 107 Stat. 77, as amended, 42
2 ARIZONA v. INTER TRIBAL COUNCIL OF ARIZ. INC.
Opinion of the Court
U. S. C. §1973gg et seq., “requires States to provide simpli-
fied systems for registering to vote in federal elections.”
Young v. Fordice, 520 U. S. 273, 275 (1997). The Act
requires each State to permit prospective voters to “regis-
ter to vote in elections for Federal office” by any of three
methods: simultaneously with a driver’s license applica-
tion, in person, or by mail. §1973gg–2(a).
This case concerns registration by mail. Section
1973gg–2(a)(2) of the Act requires a State to establish
procedures for registering to vote in federal elections “by
mail application pursuant to section 1973gg–4 of this
title.” Section 1973gg–4, in turn, requires States to “ac-
cept and use” a standard federal registration form.
§1973gg–4(a)(1). The Election Assistance Commission is
invested with rulemaking authority to prescribe the con-
tents of that Federal Form. §1973gg–7(a)(1); see §15329.1
The EAC is explicitly instructed, however, to develop the
Federal Form “in consultation with the chief election
officers of the States.” §1973gg–7(a)(2). The Federal Form
thus contains a number of state-specific instructions,
which tell residents of each State what additional infor-
mation they must provide and where they must submit
the form. See National Mail Voter Registration Form, pp.
3–20, online at http://www.eac.gov (all Internet materials
as visited June 11, 2013, and available in Clerk of Court’s
case file); 11 CFR §9428.3 (2012). Each state-specific
instruction must be approved by the EAC before it is
included on the Federal Form.
To be eligible to vote under Arizona law, a person must
be a citizen of the United States. Ariz. Const., Art. VII, §2;
Ariz. Rev. Stat. Ann. §16–101(A) (West 2006). This case
concerns Arizona’s efforts to enforce that qualification. In
——————
1 The Help America Vote Act of 2002 transferred this function from
the Federal Election Commission to the EAC. See §802, 116 Stat. 1726,
codified at 42 U. S. C. §§15532, 1973gg–7(a).
Cite as: 570 U. S. ____ (2013) 3
Opinion of the Court
2004, Arizona voters adopted Proposition 200, a ballot
initiative designed in part “to combat voter fraud by re-
quiring voters to present proof of citizenship when they
register to vote and to present identification when they
vote on election day.” Purcell v. Gonzalez, 549 U. S. 1, 2
(2006) (per curiam).2 Proposition 200 amended the State’s
election code to require county recorders to “reject any
application for registration that is not accompanied by
satisfactory evidence of United States citizenship.” Ariz.
Rev. Stat. Ann. §16–166(F) (West Supp. 2012). The proof-
of-citizenship requirement is satisfied by (1) a photocopy of
the applicant’s passport or birth certificate, (2) a driver’s
license number, if the license states that the issuing au-
thority verified the holder’s U. S. citizenship, (3) evidence
of naturalization, (4) tribal identification, or (5) “[o]ther
documents or methods of proof . . . established pursuant to
the Immigration Reform and Control Act of 1986.” Ibid.The EAC did not grant Arizona’s request to include this
new requirement among the state-specific instructions
for Arizona on the Federal Form. App. 225. Conse-
quently, the Federal Form includes a statutorily required
attestation, subscribed to under penalty of perjury, that
an Arizona applicant meets the State’s voting require-
ments (including the citizenship requirement), see
§1973gg–7(b)(2), but does not require concrete evidence of
citizenship.
The two groups of plaintiffs represented here—a group
of individual Arizona residents (dubbed the Gonzalez
plaintiffs, after lead plaintiff Jesus Gonzalez) and a group
of nonprofit organizations led by the Inter Tribal Council
of Arizona (ITCA)—filed separate suits seeking to enjoin
the voting provisions of Proposition 200. The District
——————
2 In May 2005, the United States Attorney General precleared under
§5 of the Voting Rights Act of 1965 the procedures Arizona adopted to
implement Proposition 200. Purcell, 549 U. S., at 3.
4 ARIZONA v. INTER TRIBAL COUNCIL OF ARIZ. INC.
Opinion of the Court
Court consolidated the cases and denied the plaintiffs’
motions for a preliminary injunction. App. to Pet. for
Cert. 1g. A two-judge motions panel of the Court of Ap-
peals for the Ninth Circuit then enjoined Proposition 200
pending appeal. Purcell, 549 U. S., at 3. We vacated that
order and allowed the impending 2006 election to proceed
with the new rules in place. Id., at 5–6. On remand, the
Court of Appeals affirmed the District Court’s initial
denial of a preliminary injunction as to respondents’ claim
that the NVRA pre-empts Proposition 200’s registration
rules. Gonzales v. Arizona, 485 F. 3d 1041, 1050–1051
(2007). The District Court then granted Arizona’s motion
for summary judgment as to that claim. App. to Pet. for
Cert. 1e, 3e. A panel of the Ninth Circuit affirmed in part
but reversed as relevant here, holding that “Proposition
200’s documentary proof of citizenship requirement con-
flicts with the NVRA’s text, structure, and purpose.”
Gonzales v. Arizona, 624 F. 3d 1162, 1181 (2010). The en
banc Court of Appeals agreed. Gonzalez v. Arizona, 677
F. 3d 383, 403 (2012). We granted certiorari. 568 U. S.
___ (2012).
II
The Elections Clause, Art. I, §4, cl. 1, provides:
“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.”
The Clause empowers Congress to pre-empt state regula-
tions governing the “Times, Places and Manner” of holding
congressional elections. The question here is whether the
federal statutory requirement that States “accept and use”
the Federal Form pre-empts Arizona’s state-law require-
Cite as: 570 U. S. ____ (2013) 5
Opinion of the Court
ment that officials “reject” the application of a prospective
voter who submits a completed Federal Form unaccompa-
nied by documentary evidence of citizenship.
A
The Elections Clause has two functions. Upon the
States it imposes the duty (“shall be prescribed”) to pre-
scribe the time, place, and manner of electing Representa-
tives and Senators; upon Congress it confers the power to
alter those regulations or supplant them altogether. See
U. S. Term Limits, Inc. v. Thornton, 514 U. S. 779, 804–
805 (1995); id., at 862 (THOMAS, J., dissenting). This
grant of congressional power was the Framers’ insurance
against the possibility that a State would refuse to provide
for the election of representatives to the Federal Congress.
“[E]very government ought to contain in itself the means
of its own preservation,” and “an exclusive power of regu-
lating elections for the national government, in the hands
of the State legislatures, would leave the existence of the
Union entirely at their mercy. They could at any moment
annihilate it by neglecting to provide for the choice of
persons to administer its affairs.” The Federalist No. 59,
pp. 362–363 (C. Rossiter ed. 1961) (A. Hamilton) (empha-
sis deleted). That prospect seems fanciful today, but the
widespread, vociferous opposition to the proposed Consti-
tution made it a very real concern in the founding era.
The Clause’s substantive scope is broad. “Times, Places,
and Manner,” we have written, are “comprehensive
words,” which “embrace authority to provide a complete
code for congressional elections,” including, as relevant
here and as petitioners do not contest, regulations relat-
ing to “registration.” Smiley v. Holm, 285 U. S. 355, 366
(1932); see also Roudebush v. Hartke, 405 U. S. 15, 24–25
(1972) (recounts); United States v. Classic, 313 U. S. 299,
320 (1941) (primaries). In practice, the Clause functions
as “a default provision; it invests the States with responsi-
6 ARIZONA v. INTER TRIBAL COUNCIL OF ARIZ. INC.
Opinion of the Court
bility for the mechanics of congressional elections, but only
so far as Congress declines to pre-empt state legislative
choices.” Foster v. Love, 522 U. S. 67, 69 (1997) (citation
omitted). The power of Congress over the “Times, Places
and Manner” of congressional elections “is paramount, and
may be exercised at any time, and to any extent which it
deems expedient; and so far as it is exercised, and no
farther, the regulations effected supersede those of the
State which are inconsistent therewith.” Ex parte Siebold,
100 U. S. 371, 392 (1880).
B
The straightforward textual question here is whether
Ariz. Rev. Stat. Ann. §16–166(F), which requires state
officials to “reject” a Federal Form unaccompanied by
documentary evidence of citizenship, conflicts with the
NVRA’s mandate that Arizona “accept and use” the Fed-
eral Form. If so, the state law, “so far as the conflict ex-
tends, ceases to be operative.” Siebold, supra, at 384. In
Arizona’s view, these seemingly incompatible obligations
can be read to operate harmoniously: The NVRA, it con-
tends, requires merely that a State receive the Federal
Form willingly and use that form as one element in its
(perhaps lengthy) transaction with a prospective voter.
Taken in isolation, the mandate that a State “accept and
use” the Federal Form is fairly susceptible of two inter-
pretations. It might mean that a State must accept the
Federal Form as a complete and sufficient registration ap-
plication; or it might mean that the State is merely required
to receive the form willingly and use it somehow in its
voter registration process. Both readings—“receive will-
ingly” and “accept as sufficient”—are compatible with the
plain meaning of the word “accept.” See 1 Oxford English
Dictionary 70 (2d ed. 1989) (“To take or receive (a thing
offered) willingly”; “To receive as sufficient or adequate”);
Webster’s New International Dictionary 14 (2d ed. 1954)
Cite as: 570 U. S. ____ (2013) 7
Opinion of the Court
(“To receive (a thing offered to or thrust upon one) with a
consenting mind”; “To receive with favor; to approve”).
And we take it as self-evident that the “elastic” verb “use,”
read in isolation, is broad enough to encompass Arizona’s
preferred construction. Smith v. United States, 508 U. S.
223, 241 (1993) (SCALIA, J., dissenting). In common par-
lance, one might say that a restaurant accepts and uses
credit cards even though it requires customers to show
matching identification when making a purchase. See
also Brief for State Petitioners 40 (“An airline may adver-
tise that it ‘accepts and uses’ e-tickets . . . , yet may still
require photo identification before one could board the
airplane”).
“Words that can have more than one meaning are given
content, however, by their surroundings.” Whitman v.
American Trucking Assns., Inc., 531 U. S. 457, 466 (2001);
see also Smith, supra, at 241 (SCALIA, J., dissenting). And
reading “accept” merely to denote willing receipt seems
out of place in the context of an official mandate to accept
and use something for a given purpose. The implication of
such a mandate is that its object is to be accepted as suffi-
cient for the requirement it is meant to satisfy. For exam-
ple, a government diktat that “civil servants shall accept
government IOUs for payment of salaries” does not invite
the response, “sure, we’ll accept IOUs—if you pay us a ten
percent down payment in cash.” Many federal statutes
contain similarly phrased commands, and they contem-
plate more than mere willing receipt. See, e.g., 5 U. S. C.
§8332(b), (m)(3) (“The Office [of Personnel Management]
shall accept the certification of ” various officials concern-
ing creditable service toward civilian-employee retire-
ment); 12 U. S. C. A. §2605(l)(2) (Supp. 2013) (“A servicer
of a federally related mortgage shall accept any reasonable
form of written confirmation from a borrower of existing
insurance coverage”); 16 U. S. C. §1536(p) (Endangered
Species Committee “shall accept the determinations of the
8 ARIZONA v. INTER TRIBAL COUNCIL OF ARIZ. INC.
Opinion of the Court
President” with respect to whether a major disaster war-
rants an exception to the Endangered Species Act’s re-
quirements); §4026(b)(2), 118 Stat. 3725, note following 22
U. S. C. §2751, p. 925 (FAA Administrator “shall accept
the certification of the Department of Homeland Security
that a missile defense system is effective and functional to
defend commercial aircraft against” man-portable surface-
to-air missiles); 25 U. S. C. §1300h–6(a) (“For the purpose
of proceeding with the per capita distribution” of certain
funds, “the Secretary of the Interior shall accept the tribe’s
certification of enrolled membership”); 30 U. S. C. §923(b)
(the Secretary of Labor “shall accept a board certified or
board eligible radiologist’s interpretation” of a chest X ray
used to diagnose black lung disease); 42 U. S. C. §1395w–
21(e)(6)(A) (“[A] Medicare+Choice organization . . . shall
accept elections or changes to elections during” specified
periods).3
Arizona’s reading is also difficult to reconcile with
neighboring provisions of the NVRA. Section 1973gg–
6(a)(1)(B) provides that a State shall “ensure that any
eligible applicant is registered to vote in an election . . . if
the valid voter registration form of the applicant is post-
marked” not later than a specified number of days before
the election. (Emphasis added.) Yet Arizona reads the
phrase “accept and use” in §1973gg–4(a)(1) as permitting
it to reject a completed Federal Form if the applicant does
not submit additional information required by state law.
That reading can be squared with Arizona’s obligation
——————
3 Thedissent accepts that a State may not impose additional re-
quirements that render the Federal Form entirely superfluous; it would
require that the State “us[e] the form as a meaningful part of the
registration process.” Post, at 7 (opinion of ALITO, J.). The dissent does
not tell us precisely how large a role for the Federal Form suffices to
make it “meaningful”: One step out of two? Three? Ten? There is no
easy answer, for the dissent’s “meaningful part” standard is as inde-
terminate as it is atextual.
Cite as: 570 U. S. ____ (2013) 9
Opinion of the Court
under §1973gg–6(a)(1) only if a completed Federal Form is
not a “valid voter registration form,” which seems unlikely.
The statute empowers the EAC to create the Federal
Form, §1973gg–7(a), requires the EAC to prescribe its
contents within specified limits, §1973gg–7(b), and re-
quires States to “accept and use” it, §1973gg–4(a)(1). It is
improbable that the statute envisions a completed copy of
the form it takes such pains to create as being anything
less than “valid.”
The Act also authorizes States, “[i]n addition to accept-
ing and using the” Federal Form, to create their own,
state-specific voter-registration forms, which can be used
to register voters in both state and federal elections.
§1973gg–4(a)(2) (emphasis added). These state-developed
forms may require information the Federal Form does not.
(For example, unlike the Federal Form, Arizona’s registra-
tion form includes Proposition 200’s proof-of-citizenship
requirement. See Arizona Voter Registration Form, p. 1,
online at http://www.azsos.gov.) This permission works in
tandem with the requirement that States “accept and use”
the Federal Form. States retain the flexibility to design
and use their own registration forms, but the Federal
Form provides a backstop: No matter what procedural
hurdles a State’s own form imposes, the Federal Form
guarantees that a simple means of registering to vote in
federal elections will be available.4 Arizona’s reading
——————
4 In the face of this straightforward explanation, the dissent main-
tains that it would be “nonsensical” for a less demanding federal form
to exist alongside a more demanding state form. Post, at 9 (opinion of
ALITO, J.). But it is the dissent’s alternative explanation for §1973gg–
4(a)(2) that makes no sense. The “purpose” of the Federal Form, it
claims, is “to facilitate interstate voter registration drives. Thanks to
the federal form, volunteers distributing voter registration materials at
a shopping mall in Yuma can give a copy of the same form to every
person they meet without attempting to distinguish between residents
of Arizona and California.” Post, at 9. But in the dissent’s world, a
volunteer in Yuma would have to give every prospective voter not only
10 ARIZONA v. INTER TRIBAL COUNCIL OF ARIZ. INC.
Opinion of the Court
would permit a State to demand of Federal Form appli-
cants every additional piece of information the State
requires on its state-specific form. If that is so, the Fed-
eral Form ceases to perform any meaningful function, and
would be a feeble means of “increas[ing] the number of
eligible citizens who register to vote in elections for Federal
office.” §1973gg(b).
Finally, Arizona appeals to the presumption against
pre-emption sometimes invoked in our Supremacy Clause
cases. See, e.g., Gregory v. Ashcroft, 501 U. S. 452, 460–
461 (1991). Where it applies, “we start with the assump-
tion that the historic police powers of the States were not
to be superseded by the Federal Act unless that was the
clear and manifest purpose of Congress.” Rice v. Santa Fe
Elevator Corp., 331 U. S. 218, 230 (1947). That rule of
construction rests on an assumption about congressional
intent: that “Congress does not exercise lightly” the “ex-
traordinary power” to “legislate in areas traditionally
regulated by the States.” Gregory, supra, at 460. We have
never mentioned such a principle in our Elections Clause
cases.5 Siebold, for example, simply said that Elections
——————
a Federal Form, but also a separate set of either Arizona- or California-
specific instructions detailing the additional information the applicant
must submit to the State. In ours, every eligible voter can be assured
that if he does what the Federal Form says, he will be registered. The
dissent therefore provides yet another compelling reason to interpret
the statute our way.
5 United States v. Gradwell, 243 U. S. 476 (1917), on which the dis-
sent relies, see post, at 3–4 (opinion of ALITO, J.), is not to the contrary—
indeed, it was not even a pre-emption case. In Gradwell, we held that
a statute making it a federal crime “to defraud the United States”
did not reach election fraud. 243 U. S., at 480, 483. The Court noted
that the provision at issue was adopted in a tax-enforcement bill, and
that Congress had enacted but then repealed other criminal statutes
specifically covering election fraud. Id., at 481–483.
The dissent cherry-picks some language from a sentence in Gradwell,
see post, at 3–4, but the full sentence reveals its irrelevance to our case:
Cite as: 570 U. S. ____ (2013) 11
Opinion of the Court
Clause legislation, “so far as it extends and conflicts with
the regulations of the State, necessarily supersedes them.”
100 U. S., at 384. There is good reason for treating Elec-
tions Clause legislation differently: The assumption that
Congress is reluctant to pre-empt does not hold when
Congress acts under that constitutional provision, which
empowers Congress to “make or alter” state election regu-
lations. Art. I, §4, cl. 1. When Congress legislates with
respect to the “Times, Places and Manner” of holding
congressional elections, it necessarily displaces some
element of a pre-existing legal regime erected by the
States.6 Because the power the Elections Clause confers is
——————
“With it thus clearly established that the policy of Congress for so
great a part of our constitutional life has been, and now is, to
leave the conduct of the election of its members to state laws, ad-
ministered by state officers, and that whenever it has assumed to
regulate such elections it has done so by positive and clear stat-
utes, such as were enacted in 1870, it would be a strained and
unreasonable construction to apply to such elections this §37, orig-
inally a law for the protection of the revenue and for now fifty
years confined in its application to ‘Offenses against the Opera-
tions of the Government’ as distinguished from the processes by
which men are selected to conduct such operations.” 243 U. S., at
485.
Gradwell says nothing at all about pre-emption, or about how to con-
strue statutes (like the NVRA) in which Congress has indisputably
undertaken “to regulate such elections.” Ibid.6 The dissent counters that this is so “whenever Congress legislates in
an area of concurrent state and federal power.” Post, at 5 (opinion of
ALITO, J.). True, but irrelevant: Elections Clause legislation is unique
precisely because it always falls within an area of concurrent state and
federal power. Put differently, all action under the Elections Clause
displaces some element of a pre-existing state regulatory regime,
because the text of the Clause confers the power to do exactly (and only)
that. By contrast, even laws enacted under the Commerce Clause
(arguably the other enumerated power whose exercise is most likely to
trench on state regulatory authority) will not always implicate concur-
rent state power—a prohibition on the interstate transport of a com-
modity, for example.
12 ARIZONA v. INTER TRIBAL COUNCIL OF ARIZ. INC.
Opinion of the Court
none other than the power to pre-empt, the reasonable
assumption is that the statutory text accurately communi-
cates the scope of Congress’s pre-emptive intent. More-
over, the federalism concerns underlying the presumption
in the Supremacy Clause context are somewhat weaker
here. Unlike the States’ “historic police powers,” Rice,
supra, at 230, the States’ role in regulating congressional
elections—while weighty and worthy of respect—has
always existed subject to the express qualification that it
“terminates according to federal law.” Buckman Co. v.
Plaintiffs’ Legal Comm., 531 U. S. 341, 347 (2001). In
sum, there is no compelling reason not to read Elections
Clause legislation simply to mean what it says.
We conclude that the fairest reading of the statute is
that a state-imposed requirement of evidence of citizen-
ship not required by the Federal Form is “inconsistent
with” the NVRA’s mandate that States “accept and use”
the Federal Form. Siebold, supra, at 397. If this reading
prevails, the Elections Clause requires that Arizona’s rule
give way.
We note, however, that while the NVRA forbids States
to demand that an applicant submit additional infor-
mation beyond that required by the Federal Form, it does
not preclude States from “deny[ing] registration based on
information in their possession establishing the appli-
cant’s ineligibility.”7 Brief for United States as Amicus
Curiae 24. The NVRA clearly contemplates that not every
submitted Federal Form will result in registration. See
——————
7 The dissent seems to think this position of ours incompatible with
our reading of §1973gg–6(a)(1)(B), which requires a State to “ensure
that any eligible applicant is registered to vote in an election . . . if the
valid voter registration form of the applicant is postmarked” by a
certain date. See post, at 9–10 (opinion of ALITO, J.). What the dissent
overlooks is that §1973gg–6(a)(1)(B) only requires a State to register an
“eligible applicant” who submits a timely Federal Form. (Emphasis
added.)
Cite as: 570 U. S. ____ (2013) 13
Opinion of the Court
§1973gg–7(b)(1) (Federal Form “may require only” infor-
mation “necessary to enable the appropriate State election
official to assess the eligibility of the applicant” (emphasis
added)); §1973gg–6(a)(2) (States must require election
officials to “send notice to each applicant of the disposition
of the application”).
III
Arizona contends, however, that its construction of the
phrase “accept and use” is necessary to avoid a conflict
between the NVRA and Arizona’s constitutional authority
to establish qualifications (such as citizenship) for voting.
Arizona is correct that the Elections Clause empowers
Congress to regulate how federal elections are held, but
not who may vote in them. The Constitution prescribes a
straightforward rule for the composition of the federal
electorate. Article I, §2, cl. 1, provides that electors in
each State for the House of Representatives “shall have
the Qualifications requisite for Electors of the most nu-
merous Branch of the State Legislature,” and the Seven-
teenth Amendment adopts the same criterion for senatorial
elections. Cf. also Art. II, §1, cl. 2 (“Each State shall
appoint, in such Manner as the Legislature thereof may
direct,” presidential electors). One cannot read the Elec-
tions Clause as treating implicitly what these other consti-
tutional provisions regulate explicitly. “It is difficult to see
how words could be clearer in stating what Congress can
control and what it cannot control. Surely nothing in
these provisions lends itself to the view that voting quali-
fications in federal elections are to be set by Congress.”
Oregon v. Mitchell, 400 U. S. 112, 210 (1970) (Harlan, J.,
concurring in part and dissenting in part); see also U. S.
Term Limits, 514 U. S., at 833–834; Tashjian v. Republi-
can Party of Conn., 479 U. S. 208, 231–232 (1986) (Ste-
14 ARIZONA v. INTER TRIBAL COUNCIL OF ARIZ. INC.
Opinion of the Court
vens, J., dissenting).8
Prescribing voting qualifications, therefore, “forms no
part of the power to be conferred upon the national gov-
ernment” by the Elections Clause, which is “expressly
restricted to the regulation of the times, the places, and
the manner of elections.” The Federalist No. 60, at 371
(A. Hamilton); see also id., No. 52, at 326 (J. Madison).
This allocation of authority sprang from the Framers’
aversion to concentrated power. A Congress empowered
to regulate the qualifications of its own electorate, Madi-
son warned, could “by degrees subvert the Constitution.”
2 Records of the Federal Convention of 1787, p. 250
(M. Farrand rev. 1966). At the same time, by tying the
federal franchise to the state franchise instead of simply
placing it within the unfettered discretion of state legisla-
tures, the Framers avoided “render[ing] too dependent on
the State governments that branch of the federal govern-
——————
8 In Mitchell, the judgment of the Court was that Congress could
compel the States to permit 18-year-olds to vote in federal elections. Of
the five Justices who concurred in that outcome, only Justice Black was
of the view that congressional power to prescribe this age qualification
derived from the Elections Clause, 400 U. S., at 119–125, while four
Justices relied on the Fourteenth Amendment, id., at 144 (opinion of
Douglas, J.), 231 (joint opinion of Brennan, White, and Marshall, JJ.).
That result, which lacked a majority rationale, is of minimal preceden-
tial value here. See Seminole Tribe of Fla. v. Florida, 517 U. S. 44, 66
(1996); Nichols v. United States, 511 U. S. 738, 746 (1994); H. Black,
Handbook on the Law of Judicial Precedents 135–136 (1912). Five
Justices took the position that the Elections Clause did not confer upon
Congress the power to regulate voter qualifications in federal elections.
Mitchell, supra, at 143 (opinion of Douglas, J.), 210 (opinion of Harlan,
J.), 288 (opinion of Stewart, J., joined by Burger, C. J., and Blackmun,
J.). (Justices Brennan, White, and Marshall did not address the
Elections Clause.) This last view, which commanded a majority in
Mitchell, underlies our analysis here. See also U. S. Term Limits, 514
U. S., at 833. Five Justices also agreed that the Fourteenth Amend-
ment did not empower Congress to impose the 18-year-old-voting
mandate. See Mitchell, supra, at 124–130 (opinion of Black, J.), 155
(opinion of Harlan, J.), 293–294 (opinion of Stewart, J.).
Cite as: 570 U. S. ____ (2013) 15
Opinion of the Court
ment which ought to be dependent on the people alone.”
The Federalist No. 52, at 326 (J. Madison).
Since the power to establish voting requirements is of
little value without the power to enforce those require-
ments, Arizona is correct that it would raise serious con-
stitutional doubts if a federal statute precluded a State
from obtaining the information necessary to enforce its
voter qualifications.9 If, but for Arizona’s interpretation of
the “accept and use” provision, the State would be pre-
cluded from obtaining information necessary for enforce-
ment, we would have to determine whether Arizona’s
interpretation, though plainly not the best reading, is at
least a possible one. Cf. Crowell v. Benson, 285 U. S. 22,
62 (1932) (the Court will “ascertain whether a construction
of the statute is fairly possible by which the [constitutional]
question may be avoided” (emphasis added)). Happily,
we are spared that necessity, since the statute provides
another means by which Arizona may obtain information
needed for enforcement.
Section 1973gg–7(b)(1) of the Act provides that the
Federal Form “may require only such identifying infor-
mation (including the signature of the applicant) and
other information (including data relating to previous
registration by the applicant), as is necessary to enable
the appropriate State election official to assess the eligibil-
ity of the applicant and to administer voter registration
and other parts of the election process.” At oral argument,
——————
9 In their reply brief, petitioners suggest for the first time that “regis-
tration is itself a qualification to vote.” Reply Brief for State Petition-
ers 24 (emphasis deleted); see also post, at 1, 16 (opinion of THOMAS, J.);
cf. Voting Rights Coalition v. Wilson, 60 F. 3d 1411, 1413, and n. 1 (CA9
1995), cert. denied, 516 U. S. 1093 (1996); Association of Community
Organizations for Reform Now (ACORN) v. Edgar, 56 F. 3d 791, 793
(CA7 1995). We resolve this case on the theory on which it has hitherto
been litigated: that citizenship (not registration) is the voter qualifica-
tion Arizona seeks to enforce. See Brief for State Petitioners 50.
16 ARIZONA v. INTER TRIBAL COUNCIL OF ARIZ. INC.
Opinion of the Court
the United States expressed the view that the phrase
“may require only” in §1973gg–7(b)(1) means that the
EAC “shall require information that’s necessary, but may
only require that information.” Tr. of Oral Arg. 52 (em-
phasis added); see also Brief for ITCA Respondents 46; Tr.
of Oral Arg. 37–39 (ITCA Respondents’ counsel). That is
to say, §1973gg–7(b)(1) acts as both a ceiling and a floor
with respect to the contents of the Federal Form. We need
not consider the Government’s contention that despite the
statute’s statement that the EAC “may” require on the
Federal Form information “necessary to enable the appro-
priate State election official to assess the eligibility of the
applicant,” other provisions of the Act indicate that such
action is statutorily required. That is because we think
that—by analogy to the rule of statutory interpretation
that avoids questionable constitutionality—validly con-
ferred discretionary executive authority is properly exer-
cised (as the Government has proposed) to avoid serious
constitutional doubt. That is to say, it is surely permissi-
ble if not requisite for the Government to say that neces-
sary information which may be required will be required.
Since, pursuant to the Government’s concession, a State
may request that the EAC alter the Federal Form to in-
clude information the State deems necessary to determine
eligibility, see §1973gg–7(a)(2); Tr. of Oral Arg. 55 (United
States), and may challenge the EAC’s rejection of that
request in a suit under the Administrative Procedure Act,
see 5 U. S. C. §701–706, no constitutional doubt is raised
by giving the “accept and use” provision of the NVRA its
fairest reading. That alternative means of enforcing its
constitutional power to determine voting qualifications
remains open to Arizona here. In 2005, the EAC divided
2-to-2 on the request by Arizona to include the evidence-of-
citizenship requirement among the state-specific instruc-
tions on the Federal Form, App. 225, which meant that no
action could be taken, see 42 U. S. C. §15328 (“Any action
Cite as: 570 U. S. ____ (2013) 17
Opinion of the Court
which the Commission is authorized to carry out under
this chapter may be carried out only with the approval of
at least three of its members”). Arizona did not challenge
that agency action (or rather inaction) by seeking APA
review in federal court, see Tr. of Oral Arg. 11–12 (Ari-
zona), but we are aware of nothing that prevents Arizona
from renewing its request.10 Should the EAC’s inaction
persist, Arizona would have the opportunity to establish in
a reviewing court that a mere oath will not suffice to
effectuate its citizenship requirement and that the EAC is
therefore under a nondiscretionary duty to include Ari-
zona’s concrete evidence requirement on the Federal Form.
See 5 U. S. C. §706(1). Arizona might also assert (as it has
argued here) that it would be arbitrary for the EAC to
refuse to include Arizona’s instruction when it has accepted
a similar instruction requested by Louisiana.11
* * *
We hold that 42 U. S. C. §1973gg–4 precludes Arizona
——————
10 We are aware of no rule promulgated by the EAC preventing a
renewed request. Indeed, the whole request process appears to be
entirely informal, Arizona’s prior request having been submitted by
e-mail. See App. 181.
The EAC currently lacks a quorum—indeed, the Commission has not
a single active Commissioner. If the EAC proves unable to act on a
renewed request, Arizona would be free to seek a writ of mandamus to
“compel agency action unlawfully withheld or unreasonably delayed.” 5
U. S. C. §706(1). It is a nice point, which we need not resolve here,
whether a court can compel agency action that the agency itself, for
lack of the statutorily required quorum, is incapable of taking. If the
answer to that is no, Arizona might then be in a position to assert a
constitutional right to demand concrete evidence of citizenship apart
from the Federal Form.
11 The EAC recently approved a state-specific instruction for Louisi-
ana requiring applicants who lack a Louisiana driver’s license, ID card,
or Social Security number to attach additional documentation to the
completed Federal Form. See National Mail Voter Registration Form,
p. 9; Tr. of Oral Arg. 57 (United States).
18 ARIZONA v. INTER TRIBAL COUNCIL OF ARIZ. INC.
Opinion of the Court
from requiring a Federal Form applicant to submit infor-
mation beyond that required by the form itself. Arizona
may, however, request anew that the EAC include such a
requirement among the Federal Form’s state-specific
instructions, and may seek judicial review of the EAC’s
decision under the Administrative Procedure Act.
The judgment of the Court of Appeals is affirmed.
It is so ordered.
Cite as: 570 U. S. ____ (2013) 1
Opinion of KENNEDY, J.
SUPREME COURT OF THE UNITED STATES
_________________
No. 12–71
_________________
ARIZONA, ET AL., PETITIONERS v. THE INTER
TRIBAL COUNCIL OF ARIZONA, INC., ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT
[June 17, 2013]
JUSTICE KENNEDY, concurring in part and concurring in
the judgment.
The opinion for the Court insists on stating a proposi-
tion that, in my respectful view, is unnecessary for the
proper disposition of the case and is incorrect in any event.
The Court concludes that the normal “starting presump-
tion that Congress does not intend to supplant state law,”
New York State Conference of Blue Cross & Blue Shield
Plans v. Travelers Ins. Co., 514 U. S. 645, 654 (1995), does
not apply here because the source of congressional power
is the Elections Clause and not some other provision of the
Constitution. See ante, at 10–12.
There is no sound basis for the Court to rule, for the
first time, that there exists a hierarchy of federal powers
so that some statutes pre-empting state law must be in-
terpreted by different rules than others, all depending
upon which power Congress has exercised. If the Court is
skeptical of the basic idea of a presumption against pre-
emption as a helpful instrument of construction in express
pre-emption cases, see Cipollone v. Liggett Group, Inc.,
505 U. S. 504, 545 (1992) (SCALIA, J., concurring in judg-
ment in part and dissenting in part), it should say so and
apply that skepticism across the board.
There are numerous instances in which Congress, in the
undoubted exercise of its enumerated powers, has stated
2 ARIZONA v. INTER TRIBAL COUNCIL OF ARIZ. INC.
Opinion of KENNEDY, J.
its express purpose and intent to pre-empt state law. But
the Court has nonetheless recognized that “when the text
of a pre-emption clause is susceptible of more than one
plausible reading, courts ordinarily ‘accept the reading that
disfavors pre-emption.’ ” Altria Group, Inc. v. Good, 555
U. S. 70, 77 (2008) (quoting Bates v. Dow Agrosciences
LLC, 544 U. S. 431, 449 (2005)). This principle is best
understood, perhaps, not as a presumption but as a cau-
tionary principle to ensure that pre-emption does not go
beyond the strict requirements of the statutory command.
The principle has two dimensions: Courts must be careful
not to give an unduly broad interpretation to ambiguous
or imprecise language Congress uses. And they must
confine their opinions to avoid overextending a federal
statute’s pre-emptive reach. Error on either front may put
at risk the validity and effectiveness of laws that Con-
gress did not intend to disturb and that a State has
deemed important to its scheme of governance. That con-
cern is the same regardless of the power Congress invokes,
whether it is, say, the commerce power, the war power,
the bankruptcy power, or the power to regulate federal
elections under Article I, §4.
Whether the federal statute concerns congressional
regulation of elections or any other subject proper for
Congress to address, a court must not lightly infer a con-
gressional directive to negate the States’ otherwise proper
exercise of their sovereign power. This case illustrates the
point. The separate States have a continuing, essential
interest in the integrity and accuracy of the process used
to select both state and federal officials. The States pay
the costs of holding these elections, which for practical
reasons often overlap so that the two sets of officials are
selected at the same time, on the same ballots, by the
same voters. It seems most doubtful to me to suggest that
States have some lesser concern when what is involved
is their own historic role in the conduct of elections. As
Cite as: 570 U. S. ____ (2013) 3
Opinion of KENNEDY, J.
already noted, it may be that a presumption against pre-
emption is not the best formulation of this principle, but in
all events the State’s undoubted interest in the regulation
and conduct of elections must be taken into account and
ought not to be deemed by this Court to be a subject of
secondary importance.
Here, in my view, the Court is correct to conclude that
the National Voter Registration Act of 1993 is unambigu-
ous in its pre-emption of Arizona’s statute. For this rea-
son, I concur in the judgment and join all of the Court’s
opinion except its discussion of the presumption against
pre-emption. See ante, at 10–12.
Cite as: 570 U. S. ____ (2013) 1
THOMAS, J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
No. 12–71
_________________
ARIZONA, ET AL., PETITIONERS v. THE INTER
TRIBAL COUNCIL OF ARIZONA, INC., ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT
[June 17, 2013]
JUSTICE THOMAS, dissenting.
This case involves the federal requirement that States
“accept and use,” 42 U. S. C. §1973gg–4(a)(1), the federal
voter registration form created pursuant to the National
Voter Registration Act (NVRA). The Court interprets
“accept and use,” with minor exceptions, to require States
to register any individual who completes and submits the
federal form. It, therefore, holds that §1973gg–4(a)(1) pre-
empts an Arizona law requiring additional information
to register. As the majority recognizes, ante, at 13–15,
its decision implicates a serious constitutional issue—
whether Congress has power to set qualifications for those
who vote in elections for federal office.
I do not agree, and I think that both the plain text
and the history of the Voter Qualifications Clause, U. S.
Const., Art. I, §2, cl. 1, and the Seventeenth Amendment
authorize States to determine the qualifications of voters
in federal elections, which necessarily includes the related
power to determine whether those qualifications are satis-
fied. To avoid substantial constitutional problems created
by interpreting §1973gg–4(a)(1) to permit Congress to ef-
fectively countermand this authority, I would construe
the law as only requiring Arizona to accept and use the
form as part of its voter registration process, leaving the
State free to request whatever additional information it
2 ARIZONA v. INTER TRIBAL COUNCIL OF ARIZ. INC.
THOMAS, J., dissenting
determines is necessary to ensure that voters meet the
qualifications it has the constitutional authority to estab-
lish. Under this interpretation, Arizona did “accept
and use” the federal form. Accordingly, there is no con-
flict between Ariz. Rev. Stat. Ann. §16–166(F) (West
Cum. Supp. 2012) and §1973gg–4(a)(1) and, thus, no
pre-emption.
I
In 2002, Congress created the Election Assistance
Commission (EAC), 42 U. S. C. §15321 et seq., and gave
it the ongoing responsibility of “develop[ing] a mail voter
registration application form for elections for Federal
office” “in consultation with the chief election officers of
the States.” §1973gg–7(a)(2). Under the NVRA, “[e]ach
State shall accept and use the mail voter registration
application form” the EAC develops. §1973gg–4(a)(1). The
NVRA also states in a subsequent provision that “[i]n
addition to accepting and using the form described in
paragraph (1), a State may develop and use a mail voter
registration form . . . for the registration of voters in elec-
tions for Federal office” so long as it satisfies the same
criteria as the federal form. §1973gg–4(a)(2).
Section 1973gg–7(b) enumerates the criteria for the fed-
eral form. The form “may require only such identifying in-
formation . . . and other information . . . as is necessary
to enable the appropriate State election official to assess
the eligibility of the applicant.” §1973gg–7(b)(1). The
federal form must also “specif[y] each eligibility require-
ment (including citizenship),” “contai[n] an attestation
that the applicant meets each such requirement,” and “re-
quir[e] the signature of the applicant, under penalty of
perjury.” §§1973gg–7(b)(2)(A)–(C). Insofar as citizenship
is concerned, the standard federal form contains the bare
statutory requirements; individuals seeking to vote need
only attest that they are citizens and sign under penalty of
Cite as: 570 U. S. ____ (2013) 3
THOMAS, J., dissenting
perjury.
Arizona has had a citizenship requirement for voting since
it became a State in 1912. See Ariz. Const., Art. VII,
§2. In 2004, Arizona citizens enacted Proposition 200, the
law at issue in this case. Proposition 200 provides that
“[t]he county recorder shall reject any application for
registration that is not accompanied by satisfactory evi-
dence of United States citizenship.” Ariz. Rev. Stat. Ann.
§16–166(F). The law sets forth several examples of satis-
factory evidence, including driver’s license number, birth
certificate, U. S. passport, naturalization documents, and
various tribal identification documents for Indians. §16–
166(F)(1)–(6).
Respondents, joined by the United States, allege that these
state requirements are pre-empted by the NVRA’s man-
date that all States “accept and use” the federal form
promulgated by the EAC. §1973gg–4(a)(1). They contend
that the phrase “accept and use” requires a State pre-
sented with a completed federal form to register the individ-
ual to vote without requiring any additional information.
Arizona advances an alternative interpretation. It ar-
gues that §1973gg–4(a)(1) is satisfied so long as the State
“accepts and use[s]” the federal form as part of its voter
qualification process. For example, a State “accepts and
use[s]” the federal form by allowing individuals to file it,
even if the State requires additional identifying infor-
mation to establish citizenship. In Arizona’s view, it “ac-
cepts and uses” the federal form in the same way that
an airline “accepts and uses” electronic tickets but also
requires an individual seeking to board a plane to demon-
strate that he is the person named on the ticket. Brief for
State Petitioners 40. See also 677 F. 3d 383, 446 (CA9
2012) (Rawlinson, J., concurring in part and dissenting in
part) (“[M]erchants may accept and use credit cards, but a
customer’s production of a credit card in and of itself may
not be sufficient. The customer must sign and may have
4 ARIZONA v. INTER TRIBAL COUNCIL OF ARIZ. INC.
THOMAS, J., dissenting
to provide photo identification to verify that the customer
is eligible to use the credit card”).
JUSTICE ALITO makes a compelling case that Arizona’s
interpretation is superior to respondents’. See post, at
6–10 (dissenting opinion). At a minimum, however, the
interpretations advanced by Arizona and respondents are
both plausible. See 677 F. 3d, at 439 (Kozinski, C.J.,
concurring) (weighing the arguments). The competing
interpretations of §1973gg–4(a)(1) raise significant consti-
tutional issues concerning Congress’ power to decide who
may vote in federal elections. Accordingly, resolution of
this case requires a better understanding of the relevant
constitutional provisions.
II
A
The Voter Qualifications Clause, U. S. Const., Art. I,
§2, cl. 1, provides that “the Electors in each State shall
have the Qualifications requisite for Electors of the most
numerous Branch of the State Legislature” in elections for
the federal House of Representatives. The Seventeenth
Amendment, which provides for direct election of Senators,
contains an identical clause. That language is suscep-
tible of only one interpretation: States have the author-
ity “to control who may vote in congressional elections” so
long as they do not “establish special requirements that do
not apply in elections for the state legislature.” U. S.
Term Limits, Inc. v. Thornton, 514 U. S. 779, 864–865
(1995) (THOMAS, J., dissenting); see also The Federalist
No. 57, p. 349 (C. Rossiter ed. 2003) (J. Madison) (“The
electors . . . are to be the same who exercise the right in
every State of electing the corresponding branch of the
legislature of the State”). Congress has no role in setting
voter qualifications, or determining whether they are
satisfied, aside from the powers conferred by the Four-
teenth, Fifteenth, Nineteenth, Twenty-Fourth, and Twenty-
Cite as: 570 U. S. ____ (2013) 5
THOMAS, J., dissenting
Sixth Amendments, which are not at issue here. This
power is instead expressly reposed in the States.
1
The history of the Voter Qualifications Clause’s enact-
ment confirms this conclusion. The Framers did not intend
to leave voter qualifications to Congress. Indeed, James
Madison explicitly rejected that possibility:
“The definition of the right of suffrage is very justly
regarded as a fundamental article of republican govern-
ment. It was incumbent on the convention, therefore,
to define and establish this right in the Constitu-
tion. To have left it open for the occasional regulation
of the Congress would have been improper.” The Fed-
eralist No. 52, at 323 (emphasis added).
Congressional legislation of voter qualifications was not
part of the Framers’ design.
The Constitutional Convention did recognize a danger in
leaving Congress “too dependent on the State govern-
ments” by allowing States to define congressional elector
qualifications without limitation. Ibid. To address this
concern, the Committee of Detail that drafted Article I, §2,
“weighed the possibility of a federal property requirement,
as well as several proposals that would have given the
federal government the power to impose its own suffrage
laws at some future time.” A. Keyssar, The Right to Vote
18 (rev. ed. 2009) (hereafter Keyssar); see also 2 The Rec-
ords of the Federal Convention of 1787, pp. 139–140, 151,
153, 163–165 (M. Farrand rev. ed. 1966) (text of several
voter qualification provisions considered by the Committee
of Detail).
These efforts, however, were ultimately abandoned. Even
if the convention had been able to agree on a uniform
federal standard, the Framers knew that state ratification
conventions likely would have rejected it. Madison ex-
6 ARIZONA v. INTER TRIBAL COUNCIL OF ARIZ. INC.
THOMAS, J., dissenting
plained that “reduc[ing] the different qualifications in the
different States to one uniform rule would probably have
been as dissatisfactory to some of the States as it would
have been difficult to the convention.” The Federalist No.
52, at 323; see also J. Story, Commentaries on the Consti-
tution of the United States 217 (abridged ed. 1833) (same).
Justice Story elaborated that setting voter qualifications
in the Constitution could have jeopardized ratification,
because it would have been difficult to convince States to
give up their right to set voting qualifications. Id., at 216,
218–219. See also Keyssar 306–313 (Tables A.1 and A.2)
(state-by-state analysis of 18th- and 19th-century voter qual-
ifications, including property, taxpaying, residency, sex,
and race requirements).
The Convention, thus, chose to respect the varied state
voting rules and instead struck the balance enshrined in
Article I, §2’s requirement that federal electors “shall have
the Qualifications requisite for Electors of the most numer-
ous Branch of the State Legislature.” That compromise
gave States free reign over federal voter qualifications
but protected Congress by prohibiting States from chang-
ing the qualifications for federal electors unless they also
altered qualifications for their own legislatures. See The
Federalist No. 52, at 323. This balance left the States
with nearly complete control over voter qualifications.
2
Respondents appear to concede that States have the sole
authority to establish voter qualifications, see, e.g., Brief
for Gonzalez Respondents 63, but nevertheless argue that
Congress can determine whether those qualifications are
satisfied. See, e.g., id., at 61. The practical effect of re-
spondents’ position is to read Article I, §2, out of the Con-
stitution. As the majority correctly recognizes, “the power
to establish voting requirements is of little value without
the power to enforce those requirements.” See ante, at 15.
Cite as: 570 U. S. ____ (2013) 7
THOMAS, J., dissenting
For this reason, the Voter Qualifications Clause gives
States the authority not only to set qualifications but
also the power to verify whether those qualifications are
satisfied.
This understanding of Article I, §2, is consistent with
powers enjoyed by the States at the founding. For in-
stance, ownership of real or personal property was a com-
mon prerequisite to voting, see Keyssar 306–313 (Tables
A.1 and A.2). To verify that this qualification was satis-
fied, States might look to proof of tax payments. See C.
Williamson, American Suffrage from Property to Democ-
racy, 1760–1860, p. 32 (1960). In other instances, States
relied on personal knowledge of fellow citizens to verify
voter eligibility. Keyssar 24 (“In some locales, particularly
in the South, voting was still an oral and public act: men
assembled before election judges, waited for their names
to be called, and then announced which candidates they
supported”). States have always had the power to ensure
that only those qualified under state law to cast ballots
exercised the franchise.
Perhaps in part because many requirements (such as
property ownership or taxpayer status) were indepen-
dently documented and verifiable, States in 1789 did not
generally “register” voters using highly formalized proce-
dures. See id., at 122. Over time, States replaced their
informal systems for determining eligibility, with more
formalized pre-voting registration regimes. See An Act in
Addition to the Several Acts for Regulating Elections,
1800 Mass. Acts ch. 74, in Acts and Laws of the Common-
wealth of Massachusetts 96 (1897) (Massachusetts’ 1801
voter registration law). But modern voter registration
serves the same basic purpose as the practices used by
States in the Colonies and early Federal Republic. The
fact that States have liberalized voting qualifications and
streamlined the verification process through registration
does not alter the basic fact that States possess broad
8 ARIZONA v. INTER TRIBAL COUNCIL OF ARIZ. INC.
THOMAS, J., dissenting
authority to set voter qualifications and to verify that they
are met.
B
Both text and history confirm that States have the ex-
clusive authority to set voter qualifications and to de-
termine whether those qualifications are satisfied. The
United States nevertheless argues that Congress has the
authority under Article I, §4, “to set the rules for voter
registration in federal elections.” Brief for United States
as Amicus Curiae 33 (hereafter Brief for United States).
Neither the text nor the original understanding of Article
I, §4, supports that position.
1
Article I, §4, gives States primary responsibility for
regulating the “Times, Places and Manner of holding
Elections” and authorizes Congress to “at any time by Law
make or alter such Regulations.”1 Along with the Seven-
teenth Amendment, this provision grants Congress power
only over the “when, where, and how” of holding congres-
sional elections. T. Parsons, Notes of Convention Debates,
Jan. 16, 1788, in 6 Documentary History of the Ratifica-
tion of the Constitution 1211 (J. Kaminski & G. Saladino
eds. 2000) (hereinafter Documentary History) (Massachu-
setts ratification delegate Sedgwick) (emphasis omitted);
see also ante, at 13 (“Arizona is correct that [Article I, §4,]
empowers Congress to regulate how federal elections are
held, but not who may vote in them”).
Prior to the Constitution’s ratification, the phrase
“manner of election” was commonly used in England,
Scotland, Ireland, and North America to describe the
——————
1 Themajority refers to Article I, §4, cl. 1, as the “Elections Clause.”
See, e.g., ante, at 4. Since there are a number of Clauses in the Consti-
tution dealing with elections, I refer to it using the more descriptive
term, Times, Places and Manner Clause.
Cite as: 570 U. S. ____ (2013) 9
THOMAS, J., dissenting
entire election process. Natelson, The Original Scope of
the Congressional Power to Regulate Elections, 13 U. Pa.
J. Constitutional L. 1, 10–18 (2010) (citing examples). But
there are good reasons for concluding that Article I, §4’s
use of “Manner” is considerably more limited. Id., at 20.
The Constitution does not use the word “Manner” in iso-
lation; rather, “after providing for qualifications, times,
and places, the Constitution described the residuum as ‘the
Manner of holding Elections.’ This precise phrase seems
to have been newly coined to denote a subset of traditional
‘manner’ regulation.” Ibid. (emphasis deleted; footnote
omitted). Consistent with this view, during the state
ratification debates, the “Manner of holding Elections” was
construed to mean the circumstances under which elec-
tions were held and the mechanics of the actual election.
See 4 Debates in the Several State Conventions on the
Adoption of the Federal Constitution 71 (J. Elliot 2d
ed. 1863) (hereafter Elliot’s Debates) (“The power over the
manner of elections does not include that of saying who
shall vote . . . the power over the manner only enables
them to determine how those electors shall elect—whether
by ballot, or by vote, or by any other way” (John Steele at
the North Carolina ratification debates)); A Pennsylvanian
to the New York Convention, Pennsylvania Gazette, June
11, 1788, in 20 Documentary History 1145 (J. Kaminski,
G. Saladino, R. Leffler, & C. Schoenleber eds. 2004)
(same); Brief for Center for Constitutional Jurisprudence
as Amicus Curiae 6–7 (same, citing state ratification de-
bates). The text of the Times, Places and Manner Clause,
therefore, cannot be read to authorize Congress to dictate
voter eligibility to the States.
2
Article I, §4, also cannot be read to limit a State’s au-
thority to set voter qualifications because the more specific
language of Article I, §2, expressly gives that authority to
10 ARIZONA v. INTER TRIBAL COUNCIL OF ARIZ. INC.
THOMAS, J., dissenting
the States. See ante, at 13 (“One cannot read [Article I,
§4,] as treating implicitly what [Article I, §2, and Article
II, §1,] regulate explicitly”). As the Court observed just
last Term, “[a] well established canon of statutory in-
terpretation succinctly captures the problem: ‘[I]t is a
commonplace of statutory construction that the specific
governs the general.’ ” RadLAX Gateway Hotel, LLC v.
Amalgamated Bank, 566 U. S. ___, ___ (2012) (slip op., at
5) (quoting Morales v. Trans World Airlines, Inc., 504 U. S.
374, 384 (1992); second alteration in original). The Court
explained that this canon is particularly relevant where
two provisions “ ‘are interrelated and closely positioned,
both in fact being parts of [the same scheme.]’ ” 566 U. S.,
at ___ (slip op., at 5) (quoting HCSC-Laundry v. United
States, 450 U. S. 1, 6 (1981) (per curiam)). Here, the gen-
eral Times, Places and Manner Clause is textually limited
by the directly applicable text of the Voter Qualification
Clause.
The ratification debates over the relationship between
Article I, §§2 and 4, demonstrate this limitation. Unlike
Article I, §2, the Times, Places and Manner Clause was
the subject of extensive ratification controversy. Antifed-
eralists were deeply concerned with ceding authority over
the conduct of elections to the Federal Government. Some
antifederalists claimed that the “ ‘wealthy and the well-
born,’ ” might abuse the Times, Places and Manner Clause
to ensure their continuing power in Congress. The Feder-
alist No. 60, at 368. Hamilton explained why Article I,
§2’s Voter Qualifications Clause foreclosed this argument:
“The truth is that there is no method of securing to
the rich the preference apprehended but by prescrib-
ing qualifications of property either for those who may
elect or be elected. But this forms no part of the
power to be conferred upon the national government. Its
authority would be expressly restricted to the regula-
Cite as: 570 U. S. ____ (2013) 11
THOMAS, J., dissenting
tion of the times, the places, and the manner of elec-
tions.” Id., at 369.
Ratification debates in several States echoed Hamilton’s
argument. The North Carolina debates provide a particu-
larly direct example. There, delegate John Steele relied
on the established “maxim of universal jurisprudence, of
reason and common sense, that an instrument or deed of
writing shall be construed as to give validity to all parts
of it, if it can be done without involving any absurdity” in
support of the argument that Article I, §2’s grant of voter
qualifications to the States required a limited reading of
Article I, §4. 4 Elliot’s Debates 71.
This was no isolated view. See 2 id., at 50–51 (Massa-
chusetts delegate Rufus King observing that “the power of
control given by [Article I, §4,] extends to the manner of
election, not the qualifications of the electors”); 4 id., at 61
(same, North Carolina’s William Davie); 3 id., at 202–203
(same, Virginia delegate Edmund Randolph); Roger Sher-
man, A Citizen of New Haven: Observations on the New
Federal Constitution, Connecticut Courant, Jan. 7, 1788,
in 15 Documentary History 282 (J. Kaminski & G. Sala-
dino eds. 1983) (same); A Freeman [Letter] II (Tench Coxe),
Pennsylvania Gazette, Jan. 30, 1788, in id., at 508 (same).
It was well understood that congressional power to regu-
late the “Manner” of elections under Article I, §4, did not
include the power to override state voter qualifications
under Article I, §2.
3
The concern that gave rise to Article I, §4, also supports
this limited reading. The Times, Places and Manner
Clause was designed to address the possibility that States
might refuse to hold any federal elections at all, eliminat-
ing Congress, and by extension the Federal Government.
As Hamilton explained, “every government ought to con-
tain in itself the means of its own preservation.” The
12 ARIZONA v. INTER TRIBAL COUNCIL OF ARIZ. INC.
THOMAS, J., dissenting
Federalist No. 59, at 360 (emphasis deleted); see also U. S.
Term Limits, Inc., 514 U. S., at 863 (THOMAS, J., dissent-
ing) (Article I, §4, designed “to ensure that the States hold
congressional elections in the first place, so that Congress
continues to exist”); id., at 863, and n. 10 (same, citing
ratification era sources). Reflecting this understanding
of the reasoning behind Article I, §4, many of the original
13 States proposed constitutional amendments that would
have strictly cabined the Times, Places and Manner Clause
to situations in which state failure to hold elections
threatened the continued existence of Congress. See 2
Elliot’s Debates 177 (Massachusetts); 18 Documentary
History 71–72 (J. Kaminski & G. Saladino eds. 1995)
(South Carolina); id., at 187–188 (New Hampshire); 3
Elliot’s Debates 661 (Virginia); Ratification of the Constitu-
tion by the State of New York (July 26, 1788) (New York),
online at http://avalon.law.yale.edu/18th_century/ratny.asp
(all Internet materials as visited June 6, 2013, and availa-
ble in Clerk of Court’s case file); 4 Elliot’s Debates 249
(North Carolina); Ratification of the Constitution by the
State of Rhode Island (May 29, 1790) (Rhode Island), online
at http://avalon.law.yale.edu/18th_century/ratri.asp. Al-
though these amendments were never enacted, they un-
derscore how narrowly the ratification conventions con-
strued Congress’ power under the Times, Places and Man-
ner Clause. In contrast to a state refusal to hold federal
elections at all, a state decision to alter the qualifica-
tions of electors for state legislature (and thereby for
federal elections as well) does not threaten Congress’ very
existence.
C
Finding no support in the historical record, respondents
and the United States instead chiefly assert that this
Court’s precedents involving the Times, Places and Man-
ner Clause give Congress authority over voter qualifica-
Cite as: 570 U. S. ____ (2013) 13
THOMAS, J., dissenting
tions. See, e.g., Brief for Respondent Inter Tribal Council
of Arizona, Inc. (ITCA) et al. 30–31, 48–50 (hereafter Brief
for ITCA Respondents; Brief for Gonzalez Respondents
44–50; Brief for United States 24–27, 31–33. But this
Court does not have the power to alter the terms of
the Constitution. Moreover, this Court’s decisions do not
support the respondents’ and the Government’s position.
Respondents and the United States point out that Smi-
ley v. Holm, 285 U. S. 355 (1932), mentioned “registration”
in a list of voting-related subjects it believed Congress
could regulate under Article I, §4. Id., at 366 (listing
“notices, registration, supervision of voting, protection of
voters, prevention of fraud and corrupt practices, counting
of votes, duties of inspectors and canvassers, and making
and publication of election returns” (emphasis added)).
See Brief for ITCA Respondents 49; Brief for Gonzalez
Respondents 48; Brief for United States 21. But that
statement was dicta because Smiley involved congres-
sional redistricting, not voter registration. 285 U. S., at
361–362. Cases since Smiley have similarly not addressed
the issue of voter qualifications but merely repeated the
word “registration” without further analysis. See Cook v.
Gralike, 531 U. S. 510, 523 (2001); Roudebush v. Hartke,
405 U. S. 15, 24 (1972).
Moreover, in Oregon v. Mitchell, 400 U. S. 112 (1970),
a majority of this Court, “took the position that [Article I,
§4,] did not confer upon Congress the power to regulate
voter qualifications in federal elections,” as the majority
recognizes. Ante, at 14, n. 8. See Mitchell, 400 U. S., at
288 (Stewart, J., concurring in part and dissenting in
part); id., at 210–212 (Harlan, J., concurring in part and
dissenting in part); id., at 143 (opinion of Douglas, J.).
And even the majority’s decision in U. S. Term Limits,
from which I dissented, recognized that Madison’s Feder-
alist No. 52 “explicitly contrasted the state control over the
qualifications of electors” with what it believed was “the
14 ARIZONA v. INTER TRIBAL COUNCIL OF ARIZ. INC.
THOMAS, J., dissenting
lack of state control over the qualifications of the elected.”
514 U. S., at 806 (emphasis added). Most of the remaining
cases cited by respondents and the Government merely
confirm that Congress’ power to regulate the “Manner
of holding Elections” is limited to regulating events sur-
rounding the when, where, and how of actually casting
ballots. See, e.g., United States v. Classic, 313 U. S. 299(1941) (upholding federal regulation of ballot fraud in
primary voting); Ex parte Yarbrough, 110 U. S. 651 (1884)
(upholding federal penalties for intimidating voter in
congressional election); see also Foster v. Love, 522 U. S.
67 (1997) (overturning Louisiana primary system whose
winner was deemed elected if he received a majority of
votes in light of federal law setting the date of federal
general elections); Roudebush, supra (upholding Indiana
ballot recount procedures in close Senate election as within
state power under Article I, §4). It is, thus, difficult to
maintain that the Times, Places and Manner Clause gives
Congress power beyond regulating the casting of ballots
and related activities, even as a matter of precedent.2
——————
2 ArticleI, §§2 and 4, and the Seventeenth Amendment concern con-
gressional elections. The NVRA’s “accept and use” requirement applies
to all federal elections, even presidential elections. See §1973gg–
4(a)(1). This Court has recognized, however, that “the state legisla-
ture’s power to select the manner for appointing [presidential] electors
is plenary; it may, if it chooses, select the electors itself.” Bush v. Gore,
531 U. S. 98, 104 (2000) (per curiam) (citing U. S. Const., Art. II, §1,
and McPherson v. Blacker, 146 U. S. 1, 35 (1892)). As late as 1824, six
State Legislatures chose electoral college delegates, and South Carolina
continued to follow this model through the 1860 election. 1 Guide to
U. S. Elections 821 (6th ed. 2010). Legislatures in Florida in 1868 and
Colorado in 1876 chose delegates, id., at 822, and in recent memory, the
Florida Legislature in 2000 convened a special session to consider how
to allocate its 25 electoral votes if the winner of the popular vote was
not determined in time for delegates to participate in the electoral
college, see James, Election 2000: Florida Legislature Faces Own
Disputes over Electors, Wall Street Journal, Dec. 11, 2000, p. A16,
though it ultimately took no action. See Florida’s Senate Adjourns
Cite as: 570 U. S. ____ (2013) 15
THOMAS, J., dissenting
III
A
Arizona has not challenged the constitutionality of the
NVRA itself in this case. Nor has it alleged that Congress
lacks authority to direct the EAC to create the federal
form. As a result, I need not address those issues. Ari-
zona did, however, argue that respondent’s interpretation
of §1973gg–4(a)(1) would raise constitutional concerns. As
discussed, supra, I too am concerned that respondent’s
interpretation of §1973gg–4(a)(1) would render the statute
unconstitutional under Article I, §2. Accordingly, I would
interpret §1973gg–4(a)(1) to avoid the constitutional prob-
lems discussed above. See Zadvydas v. Davis, 533 U. S.
678, 689 (2001) (“ ‘[I]t is a cardinal principle’ of statutory
interpretation, however, that when an Act of Congress
raises ‘a serious doubt’ as to its constitutionality, ‘this
Court will first ascertain whether a construction of the
statute is fairly possible by which the question may be
avoided’ ” (quoting Crowell v. Benson, 285 U. S. 22, 62
(1932))).
I cannot, therefore, adopt the Court’s interpretation that
§1973gg–4(a)(1)’s “accept and use” provision requires
states to register anyone who completes and submits the
form. Arizona sets citizenship as a qualification to vote,
and it wishes to verify citizenship, as it is authorized to do
under Article 1, §2. It matters not whether the United
States has specified one way in which it believes Arizona
might be able to verify citizenship; Arizona has the inde-
pendent constitutional authority to verify citizenship in
the way it deems necessary. See in Part II–A–2, supra.By requiring Arizona to register people who have not
——————
Without Naming Electors, Wall Street Journal, Dec. 15, 2000, p. A6.
Constitutional avoidance is especially appropriate in this area because
the NVRA purports to regulate presidential elections, an area over
which the Constitution gives Congress no authority whatsoever.
16 ARIZONA v. INTER TRIBAL COUNCIL OF ARIZ. INC.
THOMAS, J., dissenting
demonstrated to Arizona’s satisfaction that they meet its
citizenship qualification for voting, the NVRA, as inter-
preted by the Court, would exceed Congress’ powers under
Article I, §4, and violate Article 1, §2.
Fortunately, Arizona’s alternative interpretation of
§1973gg–4(a)(1) avoids this problem. It is plausible that
Arizona “accept[s] and use[s]” the federal form under
§1973gg–4(a)(1) so long as it receives the form and consid-
ers it as part of its voter application process. See post, at
6–10 (ALITO, J., dissenting); 677 F. 3d, at 444 (Rawlinson,
J., concurring in part and dissenting in part); 624 F. 3d
1162, 1205–1208 (CA9 2010) (Kozinski, C. J., dissenting in
part), reh’g 649 F. 3d 953 (CA9 2011); 677 F. 3d, at 439
(Kozinski, C. J., concurring) (same). Given States’ exclu-
sive authority to set voter qualifications and to determine
whether those qualifications are met, I would hold that
Arizona may request whatever additional information it
requires to verify voter eligibility.
B
The majority purports to avoid the difficult constitu-
tional questions implicated by the Voter Qualifications
Clause. See ante, at 13–15. It nevertheless adopts re-
spondents’ reading of §1973gg–4(a)(1) because it inter-
prets Article I, §2, as giving Arizona the right only to
“obtai[n] information necessary for enforcement” of its
voting qualifications. Ante, at 15. The majority posits
that Arizona may pursue relief by making an administra-
tive request to the EAC that, if denied, could be challenged
under the Administrative Procedure Act (APA). Ante,
at 15–17.
JUSTICE ALITO is correct to point out that the majority’s
reliance on the EAC is meaningless because the EAC
has no members and no current prospects of new mem-
bers. Post, at 6 (dissenting opinion). Offering a nonexistent
pathway to administrative relief is an exercise in futility,
Cite as: 570 U. S. ____ (2013) 17
THOMAS, J., dissenting
not constitutional avoidance.
Even if the EAC were a going concern instead of an
empty shell, I disagree with the majority’s application of
the constitutional avoidance canon. I would not require
Arizona to seek approval for its registration requirements
from the Federal Government, for, as I have shown, the
Federal Government does not have the constitutional
authority to withhold such approval. Accordingly, it does
not have the authority to command States to seek it. As
a result, the majority’s proposed solution does little to
avoid the serious constitutional problems created by its
interpretation.
* * *
Instead of adopting respondents’ definition of “accept
and use” and offering Arizona the dubious recourse of
bringing an APA challenge within the NVRA framework,
I would adopt an interpretation of §1973gg–4(a)(1) that
avoids the constitutional problems with respondents’ in-
terpretation. The States, not the Federal Government,
have the exclusive right to define the “Qualifications
requisite for Electors,” U. S. Const., Art. I, §2, cl. 1, which
includes the corresponding power to verify that those
qualifications have been met. I would, therefore, hold that
Arizona may “reject any application for registration that is
not accompanied by satisfactory evidence of United States
citizenship,” as defined by Arizona law. Ariz. Rev. Stat.
Ann. §16–166(F).
I respectfully dissent.
Cite as: 570 U. S. ____ (2013) 1
ALITO, J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
No. 12–71
_________________
ARIZONA, ET AL., PETITIONERS v. THE INTER
TRIBAL COUNCIL OF ARIZONA, INC., ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT
[June 17, 2013]
JUSTICE ALITO, dissenting.
The Court reads an ambiguous federal statute in a way
that brushes aside the constitutional authority of the
States and produces truly strange results.
Under the Constitution, the States, not Congress, have
the authority to establish the qualifications of voters in
elections for Members of Congress. See Art. I, §2, cl. 1
(House); Amdt. 17 (Senate). The States also have the
default authority to regulate federal voter registration.
See Art. I, §4, cl. 1. Exercising its right to set federal voter
qualifications, Arizona, like every other State, permits
only U. S. citizens to vote in federal elections, and Arizona
has concluded that this requirement cannot be effectively
enforced unless applicants for registration are required to
provide proof of citizenship. According to the Court, how-
ever, the National Voter Registration Act of 1993 (NVRA)
deprives Arizona of this authority. I do not think that this
is what Congress intended.
I also doubt that Congress meant for the success of
an application for voter registration to depend on which of
two valid but substantially different registration forms the
applicant happens to fill out and submit, but that is how
the Court reads the NVRA. The Court interprets one
provision, 42 U. S. C. §1973gg–6(a)(1)(B), to mean that, if
an applicant fills out the federal form, a State must regis-
2 ARIZONA v. INTER TRIBAL COUNCIL OF ARIZ. INC.
ALITO, J., dissenting
ter the applicant without requiring proof of citizenship.
But the Court does not question Arizona’s authority under
another provision of the NVRA, §1973gg–4(a)(2), to create
its own application form that demands proof of citizen-
ship; nor does the Court dispute Arizona’s right to refuse
to register an applicant who submits that form without the
requisite proof. I find it very hard to believe that this is
what Congress had in mind.
These results are not required by the NVRA. Proper
respect for the constitutional authority of the States de-
mands a clear indication of a congressional intent to pre-
empt state laws enforcing voter qualifications. And while
the relevant provisions of the Act are hardly models of
clarity, their best reading is that the States need not
treat the federal form as a complete voter registration
application.
I
A
In light of the States’ authority under the Elections
Clause of the Constitution, Art. I, §4, cl. 1, I would begin
by applying a presumption against pre-emption of the
Arizona law requiring voter registration applicants to
submit proof of citizenship. Under the Elections Clause,
the States have the authority to specify the times, places,
and manner of federal elections except to the extent that
Congress chooses to provide otherwise. And in recognition
of this allocation of authority, it is appropriate to presume
that the States retain this authority unless Congress has
clearly manifested a contrary intent. The Court states
that “[w]e have never mentioned [the presumption against
pre-emption] in our Elections Clause cases,” ante, at 10,
but in United States v. Gradwell, 243 U. S. 476 (1917), we
read a federal statute narrowly out of deference to the
States’ traditional authority in this area. In doing so, we
explained that “the policy of Congress for [a] great . . . part
Cite as: 570 U. S. ____ (2013) 3
ALITO, J., dissenting
of our constitutional life has been . . . to leave the conduct
of the election of its members to state laws, administered
by state officers, and that whenever it has assumed to
regulate such elections it has done so by positive and clear
statutes.” Id., at 485 (emphasis added).1 The presumption
against pre-emption applies with full force when Congress
legislates in a “field which the States have traditionally
occupied,” Rice v. Santa Fe Elevator Corp., 331 U. S. 218,
230 (1947), and the NVRA was the first significant federal
regulation of voter registration enacted under the Elec-
tions Clause since Reconstruction.
The Court has it exactly backwards when it declines to
apply the presumption against pre-emption because “the
federalism concerns underlying the presumption in the Su-
premacy Clause context are somewhat weaker” in an Elec-
tions Clause case like this one. Ante, at 12. To the
contrary, Arizona has a “ ‘compelling interest in preserving
the integrity of its election process’ ” that the Constitution
recognizes and that the Court’s reading of the Act seri-
ously undermines. Purcell v. Gonzalez, 549 U. S. 1, 4 (2006)
(per curiam) (quoting Eu v. San Francisco County Demo-
cratic Central Comm., 489 U. S. 214, 231 (1989)).
By reserving to the States default responsibility for
administering federal elections, the Elections Clause
protects several critical values that the Court disregards.
First, as Madison explained in defense of the Elections
Clause at the Virginia Convention, “[i]t was found neces-
——————
1 The Court argues that Gradwell is irrelevant, observing that there
was no state law directly at issue in that case, which concerned a pros-
ecution under a federal statute. Ante, at 10, n. 5. But the same is
true of Ex parte Siebold, 100 U. S. 371 (1880), on which the Court relies
in the very next breath. In any event, it is hard to see why a presump-
tion about the effect of federal law on the conduct of congressional
elections should have less force when the federal law is alleged to
conflict with a state law. If anything, one would expect the opposite
to be true.
4 ARIZONA v. INTER TRIBAL COUNCIL OF ARIZ. INC.
ALITO, J., dissenting
sary to leave the regulation of [federal elections], in the
first place, to the state governments, as being best ac-
quainted with the situation of the people.” 3 Records of
the Federal Convention of 1787, p. 312 (M. Farrand ed.
1911). Because the States are closer to the people, the
Framers thought that state regulation of federal elections
would “in ordinary cases . . . be both more convenient and
more satisfactory.” The Federalist No. 59, p. 360 (C.
Rossiter ed. 1961) (A. Hamilton).
Second, as we have previously observed, the integrity of
federal elections is a subject over which the States and the
Federal Government “are mutually concerned.” Ex parte
Siebold, 100 U. S. 371, 391 (1880). By giving States a role
in the administration of federal elections, the Elections
Clause reflects the States’ interest in the selection of the
individuals on whom they must rely to represent their
interests in the National Legislature. See U. S. Term
Limits, Inc. v. Thornton, 514 U. S. 779, 858–859 (1995)
(THOMAS, J., dissenting).
Third, the Elections Clause’s default rule helps to pro-
tect the States’ authority to regulate state and local elec-
tions. As a practical matter, it would be very burdensome
for a State to maintain separate federal and state registra-
tion processes with separate federal and state voter rolls.
For that reason, any federal regulation in this area is
likely to displace not only state control of federal elections
but also state control of state and local elections.
Needless to say, when Congress believes that some
overriding national interest justifies federal regulation, it
has the power to “make or alter” state laws specifying the
“Times, Places and Manner” of federal elections. Art. I,
§4, cl. 1. But we should expect Congress to speak clearly
when it decides to displace a default rule enshrined in
the text of the Constitution that serves such important
purposes.
The Court answers that when Congress exercises its
Cite as: 570 U. S. ____ (2013) 5
ALITO, J., dissenting
power under the Elections Clause “it necessarily displaces
some element of a pre-existing legal regime erected by the
States.” Ante, at 11. But the same is true whenever
Congress legislates in an area of concurrent state and fed-
eral power. A federal law regulating the operation of
grain warehouses, for example, necessarily alters the
“pre-existing legal regime erected by the States,” see Rice,
supra, at 229–230—even if only by regulating an activity
the States had chosen not to constrain.2 In light of Ari-
zona’s constitutionally codified interest in the integrity of
its federal elections, “it is incumbent upon the federal courts
to be certain” that Congress intended to pre-empt Ari-
zona’s law. Atascadero State Hospital v. Scanlon, 473 U. S.
234, 243 (1985).
B
The canon of constitutional avoidance also counsels
against the Court’s reading of the Act. As the Court
acknowledges, the Constitution reserves for the States the
power to decide who is qualified to vote in federal elec-
tions. Ante, at 13–15; see Oregon v. Mitchell, 400 U. S.
112, 210–211 (1970) (Harlan, J., concurring in part and
dissenting in part). The Court also recognizes that, al-
though Congress generally has the authority to regulate
the “Times, Places and Manner of holding” such elections,
——————
2 The Court observes that the Commerce Clause, unlike the Elections
Clause, empowers Congress to legislate in areas that do not implicate
concurrent state power. Ante, at 12, n. 6. Apparently the Court means
that the presumption against pre-emption only applies in those unus-
ual cases in which it is unclear whether a federal statute even touches on
subject matter that the States may regulate under their broad police
powers. I doubt that the Court is prepared to abide by this cramped
understanding of the presumption against pre-emption. See, e.g.,
Hillman v. Maretta, 569 U. S. ___, ___ (2013) (slip op., at 6) (“There is
therefore ‘a presumption against pre-emption’ of state laws governing
domestic relations” (quoting Egelhoff v. Egelhoff, 532 U. S. 141, 151
(2001)).
6 ARIZONA v. INTER TRIBAL COUNCIL OF ARIZ. INC.
ALITO, J., dissenting
Art. I, §4, cl. 1, a federal law that frustrates a State’s
ability to enforce its voter qualifications would be constitu-
tionally suspect. Ante, at 15; see ante, at 4–8 (THOMAS, J.,
dissenting). The Court nevertheless reads the NVRA to
restrict Arizona’s ability to enforce its law providing that
only United States citizens may vote. See Ariz. Const.,
Art. VII, §2. We are normally more reluctant to inter-
pret federal statutes as upsetting “the usual constitutional
balance of federal and state powers.” Gregory v. Ashcroft,
501 U. S. 452, 460 (1991); see Frankfurter, Some Reflec-
tions on the Reading of Statutes, 47 Colum. L. Rev. 527,
540 (1947) (“[W]hen the Federal Government . . . radically
readjusts the balance of state and national authority,
those charged with the duty of legislating are reasonably
explicit”).
In refusing to give any weight to Arizona’s interest in
enforcing its voter qualifications, the Court suggests that
the State could return to the Election Assistance Com-
mission and renew its request for a change to the federal
form. Ante, at 16–17. But that prospect does little to
assuage constitutional concerns. The EAC currently has
no members, and there is no reason to believe that it will
be restored to life in the near future. If that situation
persists, Arizona’s ability to obtain a judicial resolution of
its constitutional claim is problematic. The most that the
Court is prepared to say is that the State “might” succeed
by seeking a writ of mandamus, and failing that, “might”
be able to mount a constitutional challenge. Ante, at 17,
n. 10. The Court sends the State to traverse a veritable
procedural obstacle course in the hope of obtaining a
judicial decision on the constitutionality of the relevant
provisions of the NVRA. A sensible interpretation of the
Act would obviate these difficulties.
II
The NVRA does not come close to manifesting the clear
Cite as: 570 U. S. ____ (2013) 7
ALITO, J., dissenting
intent to pre-empt that we should expect to find when
Congress has exercised its Elections Clause power in a
way that is constitutionally questionable. Indeed, even if
neither the presumption against pre-emption nor the
canon of constitutional avoidance applied, the better read-
ing of the Act would be that Arizona is free to require
those who use the federal form to supplement their appli-
cations with proof of citizenship.
I agree with the Court that the phrase “accept and use,”
when read in isolation, is ambiguous, ante, at 6–7, but
I disagree with the Court’s conclusion that §1973gg–
4(a)(1)’s use of that phrase means that a State must treat
the federal form as a complete application and must either
grant or deny registration without requiring that the ap-
plicant supply additional information. Instead, I would
hold that a State “accept[s] and use[s]” the federal form so
long as it uses the form as a meaningful part of the regis-
tration process.
The Court begins its analysis of §1973gg–4(a)(1)’s con-
text by examining unrelated uses of the word “accept”
elsewhere in the United States Code. Ante, at 7–8. But a
better place to start is to ask what it normally means to
“accept and use” an application form. When the phrase is
used in that context, it is clear that an organization can
“accept and use” a form that it does not treat as a complete
application. For example, many colleges and universities
accept and use the Common Application for Undergradu-
ate College Admission but also require that applicants
submit various additional forms or documents. See Com-
mon Application, 2012–2013 College Deadlines, Fees, and
Requirements, https://www.commonapp.org/CommonApp/
MemberRequirements.aspx (all Internet materials as
visited June 10, 2013, and available in Clerk of Court’s
case file). Similarly, the Social Security Administration
undoubtedly “accepts and uses” its Social Security card
application form even though someone applying for a card
8 ARIZONA v. INTER TRIBAL COUNCIL OF ARIZ. INC.
ALITO, J., dissenting
must also prove that he or she is a citizen or has a qualify-
ing immigration status. See Application for a Social Secu-
rity Card, Form SS–5 (2011), http://www.socialsecurity.gov/
online/ss-5.pdf. As such examples illustrate, when an
organization says that it “accepts and uses” an application
form, it does not necessarily mean that the form consti-
tutes a complete application.
That is not to say that the phrase “accept and use” is
meaningless when issued as a “government diktat” in
§1973gg–4(a)(1). Ante, at 7. Arizona could not be said to
“accept and use” the federal form if it required applicants
who submit that form to provide all the same information
a second time on a separate state form. But Arizona does
nothing of the kind. To the contrary, the entire basis for
respondents’ suit is that Proposition 200 mandates that
applicants provide information that does not appear on a
completed federal form. Although §1973gg–4(a)(1) forbids
States from requiring applicants who use the federal
form to submit a duplicative state form, nothing in that pro-
vision’s text prevents Arizona from insisting that federal
form applicants supplement their applications with addi-
tional information.
That understanding of §1973gg–4(a)(1) is confirmed by
§1973gg–4(a)(2), which allows States to design and use
their own voter registration forms “[i]n addition to accept-
ing and using” the federal form. The Act clearly permits
States to require proof of citizenship on their own forms,
see §§1973gg–4(a)(2) and 1973gg–7(b)—a step that Ari-
zona has taken and that today’s decision does not disturb.
Thus, under the Court’s approach, whether someone can
register to vote in Arizona without providing proof of
citizenship will depend on the happenstance of which of
two alternative forms the applicant completes. That could
not possibly be what Congress intended; it is as if the
Internal Revenue Service issued two sets of personal
income tax forms with different tax rates.
Cite as: 570 U. S. ____ (2013) 9
ALITO, J., dissenting
We could avoid this nonsensical result by holding that
the Act lets the States decide for themselves what in-
formation “is necessary . . . to assess the eligibility of the
applicant”—both by designing their own forms and by
requiring that federal form applicants provide supple-
mental information when appropriate. §1973gg–7(b)(1).
The Act’s provision for state forms shows that the purpose
of the federal form is not to supplant the States’ authority
in this area but to facilitate interstate voter registration
drives. Thanks to the federal form, volunteers distrib-
uting voter registration materials at a shopping mall in
Yuma can give a copy of the same form to every person
they meet without attempting to distinguish between
residents of Arizona and California. See H. R. Rep. No.
103–9, p. 10 (1993) (“Uniform mail forms will permit voter
registration drives through a regional or national mailing,
or for more than one State at a central location, such as a
city where persons from a number of neighboring States
work, shop or attend events”). The federal form was
meant to facilitate voter registration drives, not to take
away the States’ traditional authority to decide what
information registrants must supply.3
The Court purports to find support for its contrary
approach in §1973gg–6(a)(1)(B), which says that a State
must “ensure that any eligible applicant is registered to
vote in an election . . . if the valid voter registration form
of the applicant is postmarked” within a specified period.
Ante, at 8–9. The Court understands §1973gg–6(a)(1)(B)
to mean that a State must register an eligible applicant if
he or she submits a “ ‘valid voter registration form.’ ” Ante,
——————
3 The Court argues that the federal form would not accomplish this
purpose under my interpretation because “a volunteer in Yuma would
have to give every prospective voter not only a Federal Form, but also
a separate set of either Arizona- or California-specific instructions.”
Ante, at 10, n. 4. But this is exactly what Congress envisioned. Eigh-
teen of the federal form’s 23 pages are state-specific instructions.
10 ARIZONA v. INTER TRIBAL COUNCIL OF ARIZ. INC.
ALITO, J., dissenting
at 9. But when read in context, that provision simply
identifies the time within which a State must process
registration applications; it says nothing about whether
a State may require the submission of supplemental in-
formation. The Court’s more expansive interpretation of
§1973gg–6(a)(1)(B) sneaks in a qualification that is no-
where to be found in the text. The Court takes pains to
say that a State need not register an applicant who
properly completes and submits a federal form but is
known by the State to be ineligible. See ante, at 12–13.
But the Court takes the position that a State may not
demand that an applicant supply any additional infor-
mation to confirm voting eligibility. Nothing in §1973gg–
6(a)(1)(B) supports this distinction.
What is a State to do if it has reason to doubt an appli-
cant’s eligibility but cannot be sure that the applicant is
ineligible? Must the State either grant or deny registra-
tion without communicating with the applicant? Or does
the Court believe that a State may ask for additional
information in individual cases but may not impose a
categorical requirement for all applicants? If that is the
Court’s position, on which provision of the NVRA does it
rely? The Court’s reading of §1973gg–6(a)(1)(B) is atex-
tual and makes little sense.
* * *
Properly interpreted, the NVRA permits Arizona to
require applicants for federal voter registration to provide
proof of eligibility. I therefore respectfully dissent.