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Scalia Puts Conservative Voting Rights Opponents In A Pickle

June 18, 2013

Is there an EAC commissioner or two in there?By now you have probably heard that the Supreme Court has struck down Arizona’s law requiring proof of citizenship to be able to register to vote.  Surprisingly, the decision wasn’t even close, with only two justices (Thomas and Alito) dissenting. Perhaps even more surprising (and certainly a demoralizing blow to some on the right) the majority opinion was written by none other than Antonin Scalia. Cue the hand-wringing…

But would Scalia, who just a year ago strongly dissented when the court more narrowly overturned most of Arizona’s egregious “papers please” anti-immigration law, really leave the right in a lurch and without hope? Of course not. Here’s what the search for the silver-lining has turned up:

While the court was clear in stating that states cannot add additional identification requirements to the federal forms on their own, it was also clear that the same actions can be taken by state governments if they get the approval of the federal government and the federal courts.

Arizona can ask the federal government to include the extra documents as a state-specific requirement, Scalia said, and take any decision made by the government on that request back to court. Other states have already done so, Scalia said.

The Election Assistance Commission “recently approved a state-specific instruction for Louisiana requiring applicants who lack a Louisiana driver’s license, ID card or Social Security number to attach additional documentation to the completed federal form,” Scalia said. [Register Guard]

If that passage isn’t entirely clear, here’s what Scalia is suggesting: the state could make a request to the U.S. Election Assistance Commission to allow this additional documentation. They just might get approval. Failing that, the state would then have legal cause to turn to the courts for remedy, where Scalia suggests they may find a more favorable outcome.

So two things:

For one, it is clear from reading the court’s opinion that this is a victory for Federal authority. The case was not decided on the basis of voting rights and civil liberties. So liberals celebrating the win should perhaps keep that in mind.

The more interesting thing, however, is this:

Currently, the Election Assistance Commission doesn’t have any active commissioners. The four commissioners are supposed to be nominated by the president and confirmed by the Senate. The last two commissioners, Donetta L. Davidson and Gineen Bresso, left in 2011, according to the EAC website.

Oh. Well that’s a hiccup, isn’t it? Scalia’s roadmap for successful, federally-approved state suppression of voting rights relies on the constitution of a board held hostage by the extreme partisan dysfunction of the U.S. Senate. How amusing.

But lest you think the problem only exists in the Senate:

During the 112th Congress, two Republican-sponsored bills — H.R. 672 and H.R. 3463 — were introduced to eliminate the Election Assistance Commission. [HuffPo]

In case you’re unfamiliar, the EAC was created as part of the bi-partisan Help America Vote Act (HAVA) following the debacle of the 2000 election. While many of us would argue that the commission’s work is far from complete, and that it indeed could use a revamp including updated standards, others (read: Republicans) say it’s work is done and that we no longer need it.

Which is funny, because for at least some Republicans, the EAC just became that weird thingamajig in the back of the junk drawer that you keep meaning to throw out because you don’t need it. Until you find that you do.

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One Comment leave one →
  1. June 18, 2013 3:44 pm

    Reblogged this on Leaning Left and commented:

    You know that thingamajig in the back of the drawer you think you don’t need? Republicans just might need it.

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