ARIZONA v. INTER TRIBAL COUNCIL OF ARIZONA

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, Washington, 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

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No. 12–71

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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 Federal 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 Registration Act of 1993 (NVRA), 107Stat. 77, as amended, 42 U. S. C. §1973gg et seq., “requires States to provide simplified 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 “register to vote in elections for Federal office” by any of three methods: simultaneously with a driver’s license application, 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 “accept and use” a standard federal registration form. §1973gg–4(a)(1). The Election Assistance Commission is invested with rulemaking authority to prescribe the contents 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 information 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 2004, Arizona voters adopted Proposition 200, a ballot initiative designed in part “to combat voter fraud by requiring 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 authority 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 requirements (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 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 Appeals 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 conflicts 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 regulations 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 requirement that officials “reject” the application of a prospective voter who submits a completed Federal Form unaccompanied by documentary evidence of citizenship.

A

The Elections Clause has two functions. Upon the States it imposes the duty (“shall be prescribed”) to prescribe the time, place, and manner of electing Representatives 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 –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 regulating 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) (emphasis deleted). That prospect seems fanciful today, but the widespread, vociferous opposition to the proposed Constitution 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 –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 responsibility 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 Federal Form. If so, the state law, “so far as the conflict extends, 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 contends, 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 willingly” 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) (“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 parlance, 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 advertise 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 sufficient for the requirement it is meant to satisfy. For example, 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 contemplate 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 concerning creditable service toward civilian-employee retirement); 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 President” with respect to whether a major disaster warrants an exception to the Endangered Species Act’s requirements); §4026(b)(2), 118Stat. 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 postmarked” 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 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 requires 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 accepting 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 registration 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 would permit a State to demand of Federal Form applicants 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 –461 (1991). Where it applies, “we start with the assumption 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 “extraordinary 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 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 Elections 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 regulations. 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 none other than the power to pre-empt, the reasonable assumption is that the statutory text accurately communicates 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 citizenship 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 information beyond that required by the Federal Form, it does not preclude States from “deny[ing] registration based on information in their possession establishing the applicant’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 §1973gg–7(b)(1) (Federal Form “may require only” information “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 numerous Branch of the State Legislature,” and the Seventeenth 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 Elections Clause as treating implicitly what these other constitutional 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 qualifications 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. Republican Party of Conn., 479 U. S. 208 –232 (1986) (Stevens, J., dissenting). 8

Prescribing voting qualifications, therefore, “forms no part of the power to be conferred upon the national government” 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, Madison 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 legislatures, the Framers avoided “render[ing] too dependent on the State governments that branch of the federal government 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 requirements, Arizona is correct that it would raise serious constitutional 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 precluded from obtaining information necessary for enforcement, 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 information (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 eligibility of the applicant and to administer voter registration and other parts of the election process.” At oral argument, 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 (emphasis 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 appropriate 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 conferred discretionary executive authority is properly exercised (as the Government has proposed) to avoid serious constitutional doubt. That is to say, it is surely permissible if not requisite for the Government to say that necessary 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 include 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 instructions on the Federal Form, App. 225, which meant that no action could be taken, see 42 U. S. C. §15328 (“Any action 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 from requiring a Federal Form applicant to submit information 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.

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1  The Help America Vote Act of 2002 transferred this function from the Federal Election Commission to the EAC. See §802, 116Stat. 1726, codified at 42 U. S. C. §§15532, 1973gg–7(a).

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.

3  The dissent accepts that a State may not impose additional requirements 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 indeterminate as it is atextual.

4  In the face of this straightforward explanation, the dissent maintains 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 a Federal Form, but also a separate set of either Arizonaor 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 dissent 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 thata 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: “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, administered by state officers, and that whenever it has assumed to regulate such elections it has done so by positive and clear statutes, such as were enacted in 1870, it would be a strained andunreasonable construction to apply to such elections this §37, originally a law for the protection of the revenue and for now fifty years confined in its application to ‘Offenses against the Operations 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 construe 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 concurrent state power—a prohibition on the interstate transport of a commodity, for example.

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.)

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 precedential 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 Amendment 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.).

9  In their reply brief, petitioners suggest for the first time that “registration is itself a qualification to vote.” Reply Brief for State Petitioners 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 qualification Arizona seeks to enforce. See Brief for State Petitioners 50.

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 bye-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 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. See National Mail Voter Registration Form, p. 9; Tr. of Oral Arg. 57 (United States).

SUPREME COURT OF THE UNITED STATES

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No. 12–71

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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, however, 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 register 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 citizenship; 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 demands 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 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 Elections 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 Supremacy Clause context are somewhat weaker” in an Elections 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 seriously undermines. Purcell v. Gonzalez, 549 U. S. 1, 4 (2006) (per curiam) (quoting Eu v. San Francisco County Democratic 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 necessary to leave the regulation of [federal elections], in the first place, to the state governments, as being best acquainted 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 –859 (1995) (Thomas, J., dissenting).

Third, the Elections Clause’s default rule helps to protect the States’ authority to regulate state and local elections. As a practical matter, it would be very burdensome for a State to maintain separate federal and state registration 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 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 federal 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 Arizona’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 Arizona’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 elections. Ante, at 13–15; see Oregon v. Mitchell, 400 U. S. 112 –211 (1970) (Harlan, J., concurring in part and dissenting in part). The Court also recognizes that, although Congress generally has the authority to regulate the “Times, Places and Manner of holding” such elections, Art. I, §4, cl. 1, a federal law that frustrates a State’s ability to enforce its voter qualifications would be constitutionally 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 interpret 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 Reflections 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 Commission 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 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 reading of the Act would be that Arizona is free to require those who use the federal form to supplement their applications 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 applicant 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 registration process.

The Court begins its analysis of §1973gg–4(a)(1)’s context 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 Undergraduate College Admission but also require that applicants submit various additional forms or documents. See Common 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 must also prove that he or she is a citizen or has a qualifying immigration status. See Application for a Social Security 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 constitutes 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 provision’s text prevents Arizona from insisting that federal form applicants supplement their applications with additional 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 accepting 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 Arizona 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.

We could avoid this nonsensical result by holding that the Act lets the States decide for themselves what information “is necessary . . . to assess the eligibility of the applicant”—both by designing their own forms and by requiring that federal form applicants provide supplemental 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 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. 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, 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 information. The Court’s more expansive interpretation of §1973gg–6(a)(1)(B) sneaks in a qualification that is nowhere 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 information 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 applicant’s eligibility but cannot be sure that the applicant is ineligible? Must the State either grant or deny registration 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 atextual 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.

__________________________________

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 istrue 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 presumption 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 oppositeto be true.

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) ).

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 alsoa separate set of either Arizonaor 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.

SUPREME COURT OF THE UNITED STATES

_________________

No. 12–71

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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 satisfied. To avoid substantial constitutional problems created by interpreting §1973gg–4(a)(1) to permit Congress to effectively 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 determines is necessary to ensure that voters meet the qualifications it has the constitutional authority to establish. Under this interpretation, Arizona did “accept and use” the federal form. Accordingly, there is no conflict 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 elections 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 federal form. The form “may require only such identifying information . . . 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 requirement (including citizenship),” “contai[n] an attestation that the applicant meets each such requirement,” and “requir[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 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 evidence of United States citizenship.” Ariz. Rev. Stat. Ann. §16–166(F). The law sets forth several examples of satisfactory 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 mandate 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 presented with a completed federal form to register the individual to vote without requiring any additional information.

Arizona advances an alternative interpretation. It argues 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 information to establish citizenship. In Arizona’s view, it “accepts 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 demonstrate 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 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 constitutional 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 susceptible of only one interpretation: States have the authority “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 –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 Fourteenth, Fifteenth, Nineteenth, Twenty-Fourth, and Twenty-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 enactment 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 government. It was incumbent on the convention, therefore, to define and establish this right in the Constitution. To have left it open for the occasional regulation of the Congress would have been improper.” The Federalist 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 governments” 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 Records 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 explained 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 Constitution 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 18thand 19th-century voter qualifications, 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 numerous Branch of the State Legislature.” That compromise gave States free reign over federal voter qualifications but protected Congress by prohibiting States from changing 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 respondents’ position is to read Article I, §2, out of the Constitution. 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. 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 instance, ownership of real or personal property was a common prerequisite to voting, see Keyssar 306–313 (Tables A.1 and A.2). To verify that this qualification was satisfied, States might look to proof of tax payments. See C. Williamson, American Suffrage from Property to Democracy, 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 independently documented and verifiable, States in 1789 did not generally “register” voters using highly formalized procedures. 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 Commonwealth 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 authority to set voter qualifications and to verify that they are met.

B

Both text and history confirm that States have the exclusive authority to set voter qualifications and to determine 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 Seventeenth Amendment, this provision grants Congress power only over the “when, where, and how” of holding congressional elections. T. Parsons, Notes of Convention Debates, Jan. 16, 1788, in 6 Documentary History of the Ratification of the Constitution 1211 (J. Kaminski & G. Saladino eds. 2000) (hereinafter Documentary History) (Massachusetts 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 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 isolation; 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 elections 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 authority to set voter qualifications because the more specific language of Article I, §2, expressly gives that authority to 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 interpretation 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 general 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. Antifederalists 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 Federalist 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 prescribing 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 regulation of the times, the places, and the manner of elections.” Id., at 369.

Ratification debates in several States echoed Hamilton’s argument. The North Carolina debates provide a particularly 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 (Massachusetts 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 Sherman, A Citizen of New Haven: Observations on the New Federal Constitution, Connecticut Courant, Jan. 7, 1788, in 15 Documentary History 282 (J. Kaminski & G. Saladino 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 regulate 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, eliminating Congress, and by extension the Federal Government. As Hamilton explained, “every government ought to contain in itself the means of its own preservation.” The Federalist No. 59, at 360 (emphasis deleted); see also U. S. Term Limits, Inc., 514 U. S., at 863 (Thomas, J., dissenting) (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 Constitution 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 available 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. Although these amendments were never enacted, they underscore how narrowly the ratification conventions construed Congress’ power under the Times, Places and Manner Clause. In contrast to a state refusal to hold federal elections at all, a state decision to alter the qualifications 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 Manner Clause give Congress authority over voter qualifications. 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 Smiley 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 congressional 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 Federalist No. 52 “explicitly contrasted the state control over the qualifications of electors” with what it believed was “the 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 surrounding 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

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. Arizona 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 problems 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 independent 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 demonstrated to Arizona’s satisfaction that they meet its citizenship qualification for voting, the NVRA, as interpreted 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 considers 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’ exclusive 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 constitutional questions implicated by the Voter Qualifications Clause. See ante, at 13–15. It nevertheless adopts respondents’ reading of §1973gg–4(a)(1) because it interprets 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 administrative 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 members. Post, at 6 (dissenting opinion). Offering a nonexistent pathway to administrative relief is an exercise in futility, 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’ interpretation. 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.

__________________________________

1  The majority 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 Constitution dealing with elections, I refer to it using the more descriptive term, Times, Places and Manner Clause.

2  Article I, §§2 and 4, and the Seventeenth Amendment concern congressional 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 legislature’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 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.

SUPREME COURT OF THE UNITED STATES

_________________

No. 12–71

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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 proposition 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 presumption 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 interpreted 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 judgment 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 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 cautionary 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 Congress did not intend to disturb and that a State has deemed important to its scheme of governance. That concern 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 congressional 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 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 unambiguous in its pre-emption of Arizona’s statute. For this reason, 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.

Print this transcript Transcript: 

ORAL ARGUMENT OF THOMAS C. HORNE ON BEHALF OF THE PETITIONERS

Chief Justice John G. Roberts: We'll hear argument first this morning in Case 12-71, Arizona v. the Inter Tribal Council of Arizona.

General Horne.

Thomas C. Horne: Thank you, Mr. Chief Justice, and may it please the Court:

The NVRA should not be construed to preempt Arizona's Proposition 200 for three reasons.

First, prohibiting a State from effectively enforcing the citizenship requirement is so far-reaching that if Congress had intended that, it would have put the prohibition in the statute expressly, which it did not do.

Congressional silence should not disable States from taking sensible precautions to exclude noncitizens from voting.

Second, when Congress wanted to expressly prohibit something, it knew how to do it.

It expressly prohibited notarization and other forms of authentication.

This Court has frequently held that statutory language that indicates -- that prohibits one thing indicates there's no other implicit prohibition: The expressio unius rule.

Third, Proposition 200 is consistent with the purposes and objectives of the NVRA, because the purpose of the NVRA--

Justice Sonia Sotomayor: If I see the purpose of the NVRA to simplify registration--

Thomas C. Horne: --Yes, Your Honor.

Justice Sonia Sotomayor: --how is Arizona's provisions consistent with that objective and purpose--

Thomas C. Horne: Your Honor--

Justice Sonia Sotomayor: --given that some of the amici explain that many people don't have the documents that Arizona requires?

Thomas C. Horne: --Yes, Your Honor.

First of all, the -- simplifying the procedure is one of two important purposes of the NVRA.

The other is the integrity of the system--

Justice Sonia Sotomayor: Well, but why does one take precedence over another?

Thomas C. Horne: --I would say, Your Honor, that neither takes precedence over the other.

They're both equally important.

And so--

Justice Sonia Sotomayor: So if something you do conflicts with one of those purposes, why isn't it preempted by the Federal law?

Thomas C. Horne: --Your Honor, I think the question is, if you take the two purposes together, does -- does the Proposition 200 strongly fulfill one and have a minimal burden on the other?

And, Your Honor, I would rely on the findings of the -- of the district court in this case.

In fact, this Court instructed the Ninth Circuit to defer to the factual findings of the district court in the Purcell case, which was this case in an earlier stage.

Justice Sonia Sotomayor: Why would you think that Congress, in doing the short form registration, didn't consider the issue of fraud, and decide that it had arrived at the balance it wanted?

Thomas C. Horne: Because, Your Honor, the -- the Congress did not specify what the States could or could not do.

Justice Ruth Bader Ginsburg: But it did -- but Congress did specify how citizenship was to be handled.

And it was to be an attestation, a signed attestation subject to -- to the penalty of perjury.

So it's not as though the Federal form didn't relate to citizenship.

It did.

And it said this is the way we deal with citizenship.

Then Arizona adds something else.

So I would like, General Horne, for you to respond to a question that's already been raised in -- by the -- the panel that decided this case originally, which was, the statute said -- says each State must accept and use the Federal form, period.

That's the end of it.

And then it says, in addition to that, the State can do other things.

The judge who asked that question thought it was perfectly clear, you use the Federal form, and if you want to do something in addition -- but you must use and accept the Federal Form and not add something to it.

Thomas C. Horne: Yes, Your Honor.

I think it's very clear that this statute does not say the signature is the only thing that the States can use to verify the eligibility of the applicant.

Now, in -- in using the term “ accept and use ”, Your Honor, accept and use in ordinary language -- we've given lots of examples in our briefs -- one can accept and use a form for a particular purpose without that form being sufficient to accomplish that purpose.

I came here from Arizona on an airplane.

If the airline said we accept and use an e-mail ticket, you don't need to bring a paper ticket.

And then I got there and they said, we want to see identification to prove that you are who you say you are, that would not contradict the statement that they are accepting and using the e-ticket.

They are accepting and using the e-ticket for a specific purpose--

Justice Elena Kagan: But, General Horne, wouldn't it contradict it if instead of saying well, we'd like you to offer identification, saying, well, we'd like you also to have a paper ticket.

Thomas C. Horne: --Yes, Your Honor.

If they--

Justice Elena Kagan: That would be inconsistent with the accept and use language, isn't that right?

Thomas C. Horne: --That's correct, Your Honor.

Yes, Your Honor.

And if I take that analogy to our -- to our facts, if we had changed the Federal form, I think we would have been in violation.

But we did not change the Federal form.

We used the Federal form exactly as it's printed by the Federal Government.

And we--

Justice Elena Kagan: Well, you have done something to the Federal form, and that essentially creates a new set of requirements and a new form.

Thomas C. Horne: --Your Honor, we -- we accept and use the Federal form.

We ask in addition to that for evidence that the person is a citizen, that they're eligible to vote.

The form is not exclusive.

The form does not bind us to use only the form and nothing else.

Justice Elena Kagan: Do you -- do you think that you could have said, you know, we have our own State form which we're allowed to have under the statute.

Anybody who requires the Federal form has to append the State form as well.

Could you have done that?

Thomas C. Horne: I think not, Your Honor, because I think that would have been contrary to the purposes and objectives of the Act.

I think what we did is consistent with the purposes and objectives of the Act.

But if you--

Justice Elena Kagan: Well, how do we draw the line?

Where does the line get drawn between adding just your own form, and adding a new set of requirements, which, you know, you could just as easily have called a form?

Thomas C. Horne: --Because the statute contemplates that it -- that it is the burden of the States to determine the eligibility of the voters.

The -- the EAC was given the duty to develop the form, and we don't argue with the fact that the form belongs to the EAC.

Justice Antonin Scalia: So that form should have included the eligibility requirements that your State demands.

And it seems to me your complaint is that the Federal form does not require proof of citizenship, unless you consider just the statement that I'm a citizen to be proof of citizenship.

But why didn't you challenge the form?

I mean, that's -- that's my problem with this.

I frankly think that Federal form doesn't make much sense unless it's -- unless it's to be exclusive for Federal voting.

And -- and why didn't you challenge the -- the refusal of the Commission to include on the form as additional State requirements the proof of citizenship?

Thomas C. Horne: Your Honor, under Section 6(a)(1) of the statute, the burden of determining whether the citizen is eligible rests with the State.

That--

Justice Antonin Scalia: Sure.

Sure.

Thomas C. Horne: --The form belongs to the EAC.

The determination of whether the applicant is eligible belongs to us.

So whether or not they put what -- what we're asking for on the form doesn't matter.

We are fulfilling our duty under Section 6(a)(1) by determining the eligibility of the applicant by asking for additional evidence of citizenship.

Justice Antonin Scalia: Well, you're -- you're simply denying then that the Federal Government can, so long as it protects the requirements that your State imposes, you're -- you're saying the Federal Government cannot prescribe a single form for -- for voter registration.

Thomas C. Horne: Your Honor, the Federal Government can prescribe the form, but the form is not exclusive.

The responsibility to determine the eligibility--

Justice Antonin Scalia: Why -- why can't it make it exclusive?

Let's assume -- I think -- I think that -- that accept and -- and employ, whatever the language is--

Thomas C. Horne: --Accept and use.

Justice Antonin Scalia: --suppose -- suppose I think that that does mean that it's supposed to be exclusive.

What harm is there so long as the Federal Commission requires as part of the Federal form all of the necessary proofs of -- of qualification that the State imposes?

Thomas C. Horne: Well, Your Honor, the -- the form is -- cannot be exclusive.

I mean, even the ITCA Respondent and the United States Respondent admit that we can look to external evidence to determine whether the voter is eligible.

The argument is, they say we can look at external evidence, but we can't ask the applicant himself, who has the most information, to pull out his driver's license and write down a number.

There's no--

Justice Ruth Bader Ginsburg: General Horne, there -- there are a whole list of State-specific requirements that get appended to the form.

And I think Justice Scalia was raising the question, did you ask to have Arizona's requirement -- just as the other State-specific requirements -- did you ask the Federal Commission to include as a State-specific requirement this proof of citizenship?

Thomas C. Horne: --We did, Your Honor, and the Commission itself took no action.

The executive director rejected our request.

The executive director has no power to make determinations.

Congress explicitly stated that the EAC can act only by a vote of three out of four of its members.

Justice Antonin Scalia: And you did nothing more about that?

Thomas C. Horne: Yes, sir.

Justice Antonin Scalia: You -- you didn't go to court to say you have to include this as one of the State-specific requirements.

Why didn't you do that?

Thomas C. Horne: Your Honor, that -- that was under a predecessor of mine, so I don't know the reason.

Justice Antonin Scalia: Oh.

Okay.

Why didn't he do it?

[Laughter]

Thomas C. Horne: I'm -- I'm not sure I would be competent to answer for him, Your Honor.

But I think -- but I don't think it makes any difference, because the form is -- is one thing that we accept and use to determine the eligibility of the voter, but it's not the only thing.

My friends on the other side--

Justice Sonia Sotomayor: I have a -- I have a hugely great difficulty, which is, the NVRA says that people can mail in this form.

Thomas C. Horne: --Yes.

Justice Sonia Sotomayor: I don't know how your rejection of the mail-in, how you're accepting and using it when you're refusing to register someone when they do exactly what the Federal law permits them to do: Mail it in.

There -- there's -- I don't -- I have a real big disconnect with how you can be saying you're accepting and using, when you're not registering people when they use it the way the Federal law permits them to.

Thomas C. Horne: Yes, Your Honor.

That is the position that the executive director took, that if the form is fully filled out and on its face it shows the person is qualified we must accept the application.

We then pointed out in our brief that that would mean that even if we had documentary proof that the person was not a citizen, we'd still have to accept the application.

In response to that, the Respondent ITCA and the Federal Government said: No, you can look at external evidence if it shows that the person is not a citizen.

So the only question remaining then is there any basis in the statute for drawing a distinction between our looking to external evidence that we have and our asking the applicant to write down a -- a number from his driver's license.

Justice Anthony Kennedy: Could you also ask for an address, for proof of the address or proof of date of birth?

Thomas C. Horne: If that were consistent with the purposes and objectives of the Act we could, Your Honor.

And in determining that, one would have to weigh our interest in the integrity of the system versus what burdens that places on the--

Justice Anthony Kennedy: But then again, it seems to me the Federal form, as some of my colleagues have indicated, is not worth very much.

Thomas C. Horne: --Your Honor, the Federal form sets forth certain minimum requirements that -- that have to be met.

In fact, the -- the Act says specifically in Section 7(b)(2) that they must ask for the signature under oath of the applicant.

The Federal form also provides under 7(a)(1) that additional things that are necessary to determine the eligibility of the applicant can also be put on the form.

The EAC chose not to put anything additional on the form, which was their right.

It was permissive.

But they did set -- set up a system of State-specific requirements.

I think that reflects the fact that the States have the burden of determining whether or not the eligible -- the applicant is eligible.

That's -- that's our burden.

We must accept and use the Federal form as a tool in doing that, but it is not the exclusive tool, and my friends on the other side have admitted that it's not the exclusive tool, because they've admitted that if we have documentary evidence the person is not a citizen, we can reject the application.

Justice Antonin Scalia: How could you establish citizenship without having something mailed in, in addition to the form?

What are the other State-specific requirements?

You have to put down your driver's license number or some other numbers?

I -- I guess you could -- you could make them check off place of birth and if that place of birth is not the United States, you could require them to write down some number of -- of their admission to citizenship.

Are there -- are there numbers that you could demand?

Thomas C. Horne: Well, some States require the Social Security number--

Justice Antonin Scalia: Okay.

Thomas C. Horne: --which is not -- which is not provided for in the statute.

Justice Antonin Scalia: Right.

Thomas C. Horne: But the -- but it's not prohibited.

And the States were held in -- in the cases that were brought under that, the States were held that they could add it because it's not prohibited.

The State of Louisiana -- inconsistently on the part of the EAC, the State of Louisiana has a requirement that was approved by the EAC and is in the form that says,

"If the applicant has neither a Louisiana driver's license, a Louisiana special identification card or a Social Security number, the applicant shall attach one of the following items to his application: A copy of a current and valid photo identification, a copy of a current utility bill, bank statement, government check, paycheck or other government document. "

So--

Justice Antonin Scalia: Yes, that's the kind of thing you should have had and that your predecessor should have asked for to be included in the Federal form.

Thomas C. Horne: --Your Honor, the Federal form is not exclusive.

Justice Elena Kagan: But -- but, General, doesn't the -- the statute make the EAC the decisionmaker with respect to what can be added to the Federal form?

The Federal form -- form, you're exactly right, sets a floor.

But if you look at Section 7, what Section 7 does is to say the EAC gets to decide the minimum necessary and it consults with the States and the States can come to it and tell it what it needs and the EAC can take action.

But the EAC is driving the bus, according to Section 7 of this statute.

Thomas C. Horne: Yes, Your Honor.

The EAC is driving the bus as to the form, but the States are driving the bus as to what is necessary to determine the ultimate--

Justice Antonin Scalia: Well, I don't think they're driving the bus as to the form.

They can't drive it into a ditch.

They're -- they're -- they're subject to arbitrary and capricious limitations just as any other agency is.

And to allow Louisiana -- to include what -- what they've allowed in Louisiana to include and to say that the only proof of citizenship -- there is a provision in the statute which says consistent with determining, the States being able to determine the qualifications.

Isn't there a provision which makes it clear that the Federal form has to make allowance for the States determining the qualifications?

Thomas C. Horne: --That's correct, Your Honor.

And the -- and the -- but the--

Justice Antonin Scalia: Now--

Thomas C. Horne: --The -- the duty of the States, Your Honor, to determine whether or not a voter is eligible, that is a duty that rests with the State, not with the EAC.

Justice Antonin Scalia: --That's true.

Thomas C. Horne: The EAC can only--

Justice Antonin Scalia: But the form has to enable the State to do that.

And it seems to me you were quite able to argue that in -- in refusing to allow you to include in the -- in the Federal form in Arizona some indication of proof of citizenship requiring nothing else except oh, I'm a -- check off, I am a citizen, right?

So it's under oath.

Big deal.

If -- if -- if you're willing to violate the voting laws, I suppose you're willing to violate the perjury laws.

Thomas C. Horne: --That's exactly right, Your Honor.

Justice Antonin Scalia: So I think you should -- you should have challenged the commission's refusal to -- to place that evidence in the Federal form.

Thomas C. Horne: Your Honor, the Federal form is -- is a tool that we have to use to determine the eligibility of the voter, but the ultimate responsibility under -- under Section 6(a)(1) of -- of this very Act is with the States to determine the eligibility of the voter.

My friends on the other side are admitting that the -- that we're not stuck with the four corners of the form, because -- because we've pointed out that would result in a ridiculous conclusion that we could have documentary proof that the person is not eligible.

So if we're not bound by the four corners of the form, as in the ordinary use of the term “ accept and use ”, we accept and use the form for a specific purpose, but it does -- it is not sufficient to satisfy that purpose.

All parties agree to that.

The only question is, is there a distinction which we do not find in the statute between using external evidence that we already have and asking someone to write down the -- the number on his driver's license, which he is the one that has the most information.

It's the logical way to do it.

In fact, there is no Federal register of American citizens.

Justice Elena Kagan: I'm a little bit confused.

Justice Anthony Kennedy: Well, I take it -- I take it that -- that counsel on -- on -- on the other side will disagree with that and they say, well, this is -- this is the line to be drawn.

The -- the postcard is presumptive evidence of registration and -- and of qualification.

And if you have evidence to the contrary, then it's different.

But otherwise, the whole utility of the single form is missing -- is gone.

Thomas C. Horne: Your Honor, there -- there is nothing in the statute to draw a distinction between our having other extrinsic evidence, which they agree we can use outside of the form and our asking people to say, write down--

Justice Anthony Kennedy: Other than the statutory words that authorize the use of the form.

Thomas C. Horne: --Yes, but -- but they don't make the form exclusive.

Congress could have said the form is exclusive and you can't ask for anything else.

They didn't do that.

And they had shown when they dealt with authentication that they knew how to prohibit something if they wanted to prohibit it.

They chose not to prohibit this exclusively and -- and so therefore, it rests with the States--

Justice Sonia Sotomayor: Some of us have -- do believe in legislative history.

Some of my colleagues don't.

Thomas C. Horne: --Yes, Your Honor.

Justice Sonia Sotomayor: All right.

But at least one of--

[Laughter]

Did he point to himself?

One of the concurring judges below said that he found the statute ambiguous, but that with the -- the legislative history there just could be no conclusion but that Congress rejected your reading.

Legislation history is very clear that this issue of what States could add to the form was raised and permission to do so was proposed explicitly and rejected.

How do you -- assuming that I believe in legislative history, don't argue to me that I shouldn't, okay?

Thomas C. Horne: Yes, Your Honor.

Justice Sonia Sotomayor: How do you get around that?

Thomas C. Horne: Your Honor, if the -- if the legislative history were consistent, I would -- I would say that was an argument that could be made.

But the legislative history her is extremely self-contradictory and one cannot conclude from any part of that legislative history what was the intent of the majority of the Congress.

The House committee which dealt with the very act that -- that we have said:

"Only the elected officials designated and authorized under State law are charged with responsibility to enroll eligible voters on the list of voters. "

"The NVRA should not be interpreted in any way to supplant that authority. "

"The committee is particularly interested in ensuring that election officials continue to make determinations as to applicants' eligibility such as citizenship as they're made under current law and practice. "

And the FEC, which is a predecessor to the EAC, relying on that House committee report, said that an application received by a local voter registration official is only an application and be subject to whatever verification procedures are currently applied to all applications.

In addition, Your Honor--

Justice Antonin Scalia: Gee, if I believed -- if I believed in legislative history, I would find that very persuasive.

[Laughter]

Thomas C. Horne: --Thank you, Your Honor.

Justice Stephen G. Breyer: Could I ask a different -- can I ask--

[Laughter]

Thomas C. Horne: Could I just add one quick point, and that is that the sponsor of the bill was opposed to that amendment in conference committee, saying it wasn't necessary, that the States could already verify applicants under the existing law as it was written before that amendment.

Justice Stephen G. Breyer: There's probably a perfectly good answer to this, but I -- I notice that in this Federal law in 7(b), it says what the registration form shall contain.

Thomas C. Horne: Yes.

Justice Stephen G. Breyer: Now, there are four subsections and only one of those refers to a particular thing, and that is, identifying information.

It shall include a statement, including citizenship, saying -- that contains an attestation the applicant meets that requirement.

Thomas C. Horne: Yes, Your Honor.

Justice Stephen G. Breyer: And under perjury.

Thomas C. Horne: Yes.

Justice Stephen G. Breyer: It says that.

Then I look at the Arizona law and it says in Arizona, you have to include like in immigration, you know, a passport, a birth certificate, and then you have a couple of other things that show you're a citizen, correct?

Thomas C. Horne: Yes, those are very unusual.

Normally, you just write down the number from your driver's license.

Justice Stephen G. Breyer: Yes, okay.

That's not my question.

Thomas C. Horne: Okay, Your Honor.

Justice Stephen G. Breyer: I'm saying given these five or six specific things--

Thomas C. Horne: Yes, Your Honor.

Justice Stephen G. Breyer: --that show you're a citizen--

Thomas C. Horne: Yes, Your Honor.

Justice Stephen G. Breyer: --what use does Arizona make of that attestation under perjury?

Thomas C. Horne: Well, there have been -- actually, there have been prosecutions for perjury, Your Honor.

But it's not -- it's not at all a verification of the eligibility of the citizen because--

Justice Stephen G. Breyer: I didn't say it wasn't.

I just want to know, since you have right in front of you a birth certificate or the equivalent, what use are you making of the Federal provision that's there in the form: I am a citizen.

What use are you making of that?

Thomas C. Horne: --Well, Your Honor, we are making use of it and I just mentioned--

Justice Stephen G. Breyer: Well, I know -- I'm sure you are and then my question is how?

Thomas C. Horne: --By prosecuting -- there have been ten prosecutions in one year alone of people who swore falsely.

Out of the hundreds that were caught swearing falsely, ten in fact were prosecuted.

Justice Stephen G. Breyer: By?

Thomas C. Horne: But that -- but that is not a -- that is not a sufficient use or that is not a sufficient measure of determining eligibility, because literally hundreds have been caught swearing jury -- jury commissioner forms swearing they are not citizens after they had already registered to vote.

Other people were caught in their applications to citizenship when they checked and found that they had previously registered to vote and voted.

So -- so we are making use of it, but it is not a -- it is not a functional way to determine eligibility.

And in 7(a)(1), Congress said that -- that both the Federal form and the State form as incorporated under Section 4 may ask for such additional information, only such additional information as is necessary to determine the eligibility of the voter.

That shows that Congress did not intend to prohibit us from getting additional information as is necessary to determine the eligibility of the voter.

Justice Elena Kagan: General, could I take you back to this distinction that you're making.

You said you can't append an additional form, you can't use an additional form, but you can require additional information.

Thomas C. Horne: Yes, Your Honor.

Justice Elena Kagan: So how do -- what's the difference between requiring additional information and requiring an additional form?

Isn't -- when you say you need information A, B, C, D, E, that's just a form, isn't it?

Thomas C. Horne: No, Your Honor, it's not a form.

It's -- it's an instruction to -- to write down on the Federal form a number.

And there is -- item six on the Federal form has a block where you write down the number and if you don't have either number -- you can write down a -- a driver's license, you can write down a naturalization number, you can write down an Indian tribal identification number.

If you don't have any of those numbers, then you can send in one of these additional documents.

But that is not an additional form.

The reason -- the distinction I draw between the -- incorporating another form or the State form and asking for additional information is the purposes and objectives of the Act.

The Act indicates that the State form is an alternative to the Federal form, but cannot take its place.

So I'm saying it would not be consistent with the purpose and objectives of the Act to attach the form, but it is consistent--

Justice Elena Kagan: Well, what is the -- what would be the purpose of requiring a Federal form if you could just say, and in addition to that, you have to give ten more items of information?

I mean, then the Federal form just becomes another hoop to jump through.

Thomas C. Horne: --No, Your Honor.

I -- I don't think that's correct.

First of all -- for two reasons.

First of all, the Federal form does provide minimums.

You must -- you must answer the questions set forth in the Federal form.

But secondly, to the extent we add things to the Federal form, those things must be consistent with the purposes and objectives of the Act.

And I -- and I -- and I justify my assertion that Prop 200 is consistent with the purpose and objectives of the Act by relying on the findings of the trial court that relate exactly to that question, finding that it was a minimal burden, overcome by a major interest that the State has in protecting the integrity of the system, where the -- where the trial judge found a lot of evidence to show that there was voter fraud going on, although not the fault of the individuals, the fault of the organizations that often fool people into signing the form when they don't intend to or they don't intend to break the law; but as -- but as against that, that the -- that the burdens are minimal.

And the trial court, the district court, had a lot of findings justifying the statement that the burdens are minimal, including the fact, for example, that if all the rejected forms had been accepted, the increase in Hispanic registration would have only have been.1 percent, which is statistically insignificant, including the fact that out of a population of $6 million, the plaintiffs, who have all the resources one can imagine if you look at the list of plaintiffs, could only find one person out of six million people that could not satisfy -- who was entitled to vote, who could not satisfy the requirements of the Act; and a lot of other findings by the trial court.

And this Court instructed the Ninth Circuit to give deference to the factual findings of the trial court in the Purcell case, and the Ninth Circuit ignored that.

And what I'm saying is if you look at the factual findings of the trial court, our position is consistent with the purpose and objectives of the Act.

And I'd like to--

Justice Sonia Sotomayor: General--

Thomas C. Horne: --Could I reserve time for rebuttal, Your Honor?

Chief Justice John G. Roberts: Yes.

Justice Sonia Sotomayor: --I'm still having a problem.

Thomas C. Horne: Yes, Your Honor.

Justice Sonia Sotomayor: Both the Federal law and the State law require an individual to be a citizen.

Thomas C. Horne: Yes, Your Honor.

Justice Sonia Sotomayor: That's the basic qualification.

Thomas C. Horne: Yes, Your Honor.

Justice Sonia Sotomayor: Both agree that that's essential.

Thomas C. Horne: Yes, Your Honor.

Justice Sonia Sotomayor: How do you fit in the question of what documents you use to prove that with establishing the qualification?

Meaning citizenship, you either have it or you don't.

That's why the Federal form says are you or aren't you.

Thomas C. Horne: Yes.

Justice Sonia Sotomayor: So there's -- that qualification has been set by Arizona and the Federal system.

Thomas C. Horne: The qualification has, but our -- our objection to the Ninth Circuit decision preempting Proposition 200 is that it leaves us unable to enforce our qualification requirement, which under the Constitution clearly is a State function.

Justice Sonia Sotomayor: Counsel, you have proof, there are people that you have rejected even without these forms?

Thomas C. Horne: It's extremely inadequate, Your Honor.

It's essentially an honor system.

It does not do the job.

Justice Sonia Sotomayor: Well, that's what the Federal system decided was enough.

Thomas C. Horne: That's what they decided as a minimum in the Federal form, but they did not say that we could not ask for additional information.

Congress could have said that, just as they said we can't ask for notarization.

They chose not to say that.

Justice Sonia Sotomayor: Well, you admit that it doesn't let you add things.

You have to accept and use that form.

Thomas C. Horne: We have to accept and use the form and we can't change the form, but we can ask for additional evidence to perform our function of determining that citizens--

Justice Sonia Sotomayor: I go back to Justice Kagan.

If you don't have a driver's license to put a number down--

Thomas C. Horne: --Yes.

Justice Sonia Sotomayor: --this list of things says you have to append to the form other items: A copy of your birth certificate, a copy of your naturalization certificate.

Why isn't that just creating another form?

Thomas C. Horne: Your Honor, incidentally, there have been references to a postcard.

The EAC itself says put the form in an envelope.

And -- and just as you put the form in an envelope, you can put a copy of your birth certificate in an envelope.

But I would point out under Crawford v. Marion County, the holding in this case, if there's a minimal burden on the great majority of the people and a somewhat higher burden on a few people, that does not negate the interests of the State and the integrity of the system.

May I reserve time for rebuttal, Your Honor?

Chief Justice John G. Roberts: Yes, you may.

Thomas C. Horne: Thank you.

Chief Justice John G. Roberts: Ms. Millett?

ORAL ARGUMENT OF PATRICIA A. MILLETT ON BEHALF OF THE RESPONDENTS

Patricia A. Millett: Mr. Chief Justice, and may it please the Court:

Arizona simply disagrees with the balance that Congress drew.

And when it comes to registration, Justice Kennedy and Justice Kagan, you're both correct, the whole point of the Federal form is that Congress had to draw a different balance.

It confronted a situation in which 40 percent of eligible voters were not registered, because State procedures and burdens were standing as an obstacle, a barrier in the direct line of accountability between individual citizens and their Federal Government.

Justice Antonin Scalia: And enclosing your driver's license number is that immense barrier, right?

Patricia A. Millett: First--

Justice Antonin Scalia: That's what's keeping 40 percent of eligible voters away?

Patricia A. Millett: --First of all, with -- with respect to the driver's license, it's only driver's licenses issued after 1996, October 1996, and those that were not -- that someone did not obtain when they became naturalized.

So you have to be about 33 years of age.

Anyone older than that, their driver's license isn't going to work.

And, in fact, Mr. Gonzalez in this case used his driver's license number and got bounced.

Justice Antonin Scalia: I still think that's a relatively few number, and -- and if you don't have the driver's license, then you can use your naturalization certificate.

Patricia A. Millett: Mr. Gonzalez did that as well and the naturalization certificate got bounced because the naturalization certificate, when put into the computer, does not produce records.

It is a mistake in Arizona's Proposition 200.

Neither way is--

Justice Antonin Scalia: Well, you can say that about any certification procedure that, now and then there will be a mistake.

I mean the fact that there is one person where -- where the computer spit out the wrong number or something, that is the basis for rejecting the entire system that Arizona proposes?

Patricia A. Millett: --Joint appendix page 263, the district court found that 31,550 people were rejected from voting because of Proposition 200.

Even on that same page he finds that 11,000 of them subsequently registered but they had to do the double gauntlet that Congress was trying to eliminate.

The other 20,000 swore under oath that they were citizens and Mr. Horne before the Ninth Circuit conceded he had no evidence that they were not citizens--

Justice Samuel Alito: The statute--

Patricia A. Millett: --of the United States.

Justice Samuel Alito: --The statute says that Arizona must accept and use the Federal form.

What does that mean?

Let me give you two possible definitions: One, the person must be registered if the Federal form is properly completed and submitted; two, the State may not make any further inquiry of the person who submits the form.

Maybe you have other definitions, but what is the -- what do you interpret “ accept and use ” to mean?

Patricia A. Millett: We interpret “ accept and use ”, it's mainly the latter, your second one, and that is that it is a limitation on what can be asked of the individual and that's not just from the Section 4 language where accept and use comes from.

But what's critical here is Section gg-7 which is on 26H of the petition appendix here.

And that's where they say on this form.

The form may require only, may require only -- from the applicant, I'm adding that in -- such identifying information essentially as the Commission determines is necessary to allow the State to make its decision.

Now this is not just a ticket into the State's own registration process so they can go thank you very much for throwing it in the garbage can, now do what we would like you to do.

It is a registration form, and when filled out completely and submitted under oath it has the same legal--

Justice Samuel Alito: Well, let me give you this example--

Patricia A. Millett: --as the registration form.

Justice Samuel Alito: --A person rides up to a place to register on a bicycle and gets out and hands in the Federal form.

This boy looks like he is 13 years old and he is carrying school books, he is wearing a middle school t-shirt, but he has filled out the form properly.

Are they required to register him or can they ask him, could you show me some proof of age, like he would have to if he tried to buy alcohol or cigarettes?

Patricia A. Millett: They may not require anything else from the applicant but they can certainly apply their own evidence that they obtain, whether it's from their own eyeballs or whether it is through records or databases that they run these through which is the more common one, and make a decision.

Now a decision, the decision isn't simply we would like more from you.

That's not an appropriate decision.

Justice Stephen G. Breyer: His point is, he keeps making the point, your colleague, and he says, no, that isn't what it says.

What the statute says is it may require only such identifying information as is necessary to assess eligibility.

In other words, it's telling the people who write the form what they can put on it.

And they can't put other things on it.

But it nowhere says that the State can't do other things.

Now that's his point.

And when I asked him, well, how are you -- how are you using -- you have to be able to use, oh, he says, we use it.

We use the citizen part and these things on the form to prosecute people for perjury.

So we're doing what it says, we're using it and it doesn't say we can't add a few other things.

Okay.

Now, that's his argument.

Now, your answer, which would be very helpful to me, is?

Patricia A. Millett: My answer is when you look at 26H it's talking about the form.

And first, we know that the commission is the one that decides what is necessary on this form, a decision that wasn't challenged--

Justice Antonin Scalia: Is that conclusive or can that be challenged?

Patricia A. Millett: --It can certainly be challenged under the Administrative Procedure Act.

It was not in this case.

But it says what is necessary on this form.

Now, when you talk about what's necessary on a form you're talking about from the applicant.

So this defines what is necessary from the applicant, what can be requested or demanded from the applicant--

Justice Stephen G. Breyer: On the form.

Patricia A. Millett: --On the form, exactly.

On the form.

And that is the necessary information to let them apply their own tools and make the decisions that the States make--

Justice Stephen G. Breyer: But his problem is how do you get to that conclusion?

He says you can't get there from the language because the language doesn't say that.

It says what the Commission can put on the form.

It doesn't say anything about whether some other agency, such as a State or sovereign, can add something.

Now, that's his problem.

And I would like to hear very succinctly, the reason he is wrong about that is.

Patricia A. Millett: --The Commission, let me just -- if we turn to 26H at the very top line--

Justice Stephen G. Breyer: 26H.

Patricia A. Millett: --26H, where it has a number 1, let's insert the Commission before I get to the word “ may ”.

And that's all you need to do.

We know from the prior page the Commission is the one doing this.

The Commission may require only from the applicant.

Justice Stephen G. Breyer: Yes.

Patricia A. Millett: That's all the Commission is allowed to require from the applicant.

Justice Stephen G. Breyer: Correct.

Patricia A. Millett: And then the burden shifts to the State to do it.

If, Justice Breyer, if the question is they may require that, and then the State can require anything else it wants, it is an utterly pointless form.

And what we know from six--

Justice Antonin Scalia: Excuse me, they may require it.

It doesn't say they must require it.

So it leaves it open to the Commission, does it not, to decline to require some materials that is necessary to enable the appropriate State election official to assess eligibility?

Isn't that, isn't that what the language means?

Patricia A. Millett: --I don't think that's a fair reading of what Congress would have assigned to them.

But even if it were, Justice Scalia--

Justice Antonin Scalia: May means may.

Patricia A. Millett: --that's something to be challenged through the Administrative Procedure Act--

Justice Antonin Scalia: No, no, no, we're talking about -- right now we are talking about the consequences of that language, not -- and the consequence of the may is may.

It does not even require the Commission to include within the form everything that's necessary for the State to determine eligibility.

Now, why would Congress ever create such a system where the Commission need not require what's necessary for eligibility, and nonetheless, the State cannot, cannot require anything further than what the Commission says?

Patricia A. Millett: --The relevant phraseology is may require only, and that is not your normal permissive language.

It's actually Congress -- it is language of limitation when used that way.

“ You may require only ” does not mean that you may -- that you may do what you want, and they have further down--

Justice Antonin Scalia: It says what you only may require.

It doesn't say what you only shall require.

Patricia A. Millett: --But you may require what is necessary to enable.

So the language here, I think any fair reading -- and we don't strain the language in this context -- the natural reading is that they may require only the information from the applicant that's necessary essentially to shift the burden.

Justice Stephen G. Breyer: Where you're going is this, as I heard you before: It is true that there is no specific language saying the State can't do this, can't add things.

But it does make a huge point approving citizenship in a particular way on the form.

What would the point of that be if the State could add things?

So we must look back to the purpose, not necessarily exclusively the language, of deciding what that particular provision B, in particularly one as you quote adding to, what could it have been?

And there the legislative history in my view is helpful because it makes clear, for example, in at least one place that Congress did think they shouldn't add a provision that allows the State to do just what it's doing here because that wouldn't be consistent with the purpose of the Act.

So I'm putting words in your mouth but don't accept them because I put them there.

Patricia A. Millett: I would just like to add to that, Justice Breyer, two points, and that is with respect to citizenship in particular, not only does the statute, the NVRA flag it, but the Help America Vote Act in 2002.

So even if you don't want to go just with the legislative history, Justice Scalia, in 2002 Congress revisited the citizenship requirement for the Federal form and it added a box that you have to check that you are a citizen -- that you are a citizen.

So Congress revisited this issue after the statute had been in effect for nine years.

Justice Sonia Sotomayor: Ms. Millett, I want to give up--

Chief Justice John G. Roberts: Ms. Millett, is there -- I take it under your theory what the EAC allowed Louisiana to do was wrong.

Patricia A. Millett: It's unclear.

It's a little different in that context in two ways.

First of all, the Commission made the decision so they have that.

Chief Justice John G. Roberts: Yes, I know.

I'm assuming that, and I'm saying they were wrong.

Patricia A. Millett: Oh, I'm sorry.

And then the second thing is the information that's required there is information for the most part that is -- that the Help America Vote Act allows States to require of individuals.

Now, in the Help America to Vote Act, it's an either do it at the polls or do it in the registration.

Maybe the Commission thought it could forward it, but at least there you have two profound differences and that is it's at least information that a separate statute has said States can require from individuals.

Justice Ruth Bader Ginsburg: And those are--

Patricia A. Millett: But I think it's--

Justice Ruth Bader Ginsburg: --What are they?

Patricia A. Millett: --That is the--

Justice Ruth Bader Ginsburg: What are the additional -- the question here is, is proof of citizenship an additional thing the State can ask.

Now you're telling us that there are some additional things.

Patricia A. Millett: --No, it's not proof of citizenship.

What it is, is an identification requirement that can be applied at the polls or the Help America Vote Act says at the time of registration.

Justice Ruth Bader Ginsburg: Can you -- can you explain -- it's puzzling.

You have all these State-specific and pages of State-specific requirements.

What State-specific requirements are permitted and what State-specific requirements are not permitted?

You're putting the citizenship on the not permitted side of the line.

What is permitted and what is not permitted and what's the difference in the two categories?

Patricia A. Millett: Okay.

First of all, the State requirement of citizenship, it's permitted in the sense that Congress requires in three different ways that citizenship be affirmed.

It's simply disagreeing about proof.

So it's not as though citizenship is left off this form, it's simply a question of how it's proved.

But the Help America -- just to get right to your question -- there's two aspects to the Help America Vote Act that change this form a little bit.

When you go through those instructions, what you will see -- here's what those State-specific instructions are: They are the requirement that you put in an ID number that is required by the Help America Vote Act required.

So clearly, that is to be on the form because another statute requires it.

And then you put on -- it says to put on party identification for the States that have it.

Some States have race identified, and then the instructions tell you about the different filing deadlines--

Justice Antonin Scalia: Is all that stuff required by the Vote America Act?

All that stuff?

Patricia A. Millett: --No, no--

Justice Antonin Scalia: Just the first thing you mentioned for us.

Patricia A. Millett: --Just the identification number.

Justice Antonin Scalia: And the rest is -- is what?

Patricia A. Millett: Well, there's two -- those are things that are in the State -- when you look at those State-specific instructions, they are not add-ons.

They are not adding attachments.

Justice Elena Kagan: Ms. Millett, I mean, suppose it were true that the EAC has been inconsistent in this respect.

That would be a different kind of lawsuit.

Patricia A. Millett: That would be a very different lawsuit that was never brought in this case.

And this just -- the Louisiana thing just happened in--

Chief Justice John G. Roberts: You've got a great deal of reliance on what the EAC has done, and I'm saying if it's not doing a very good job, I'd be -- I'd question whether or not the fact that the EAC is going to implement it is sufficient assurance that the Act reads the way you say it does.

Patricia A. Millett: --But the Act, I think, by -- by its own plain language and by its normal -- it can't have no -- there is only two ways to look at this statute.

It either created a form that is simply to be the servant of every State and they can pile on to it anything else they want, and that is utterly irreconcilable to Congress's findings and the entire purpose of this statute or this is Congress's registration mechanism that it shows exercising its power.

Justice Antonin Scalia: Not anything else that they want.

Not anything else that they want.

But what is, in the words of the statute, necessary to enable the appropriate State election official to assess the eligibility of the applicant?

It's clear that the statute intends the States to be able to do that.

And you say, well, the -- you know, the Commission has -- has required its -- its own proof and the State wants a different kind of proof.

The proof the Commission requires is simply the statement, I'm a citizen.

This is proof?

Patricia A. Millett: This is -- statements--

Justice Antonin Scalia: This is not proof at all.

Patricia A. Millett: --Statements under oath, statements under oath in a criminal case--

Justice Antonin Scalia: Under oath is not proof at all.

It's just a statement.

Patricia A. Millett: --Statements under oath in a criminal case are proof beyond a reasonable doubt by which we execute them.

Justice Samuel Alito: What do you make of the fact that--

Patricia A. Millett: It's a very serious oath -- I'm sorry.

Justice Samuel Alito: --I didn't mean to interrupt your sentence.

What -- what do you make of the fact that States can create their own forms?

Arizona has its own form, right?

And I don't believe you argue that its form is illegal.

Maybe you think it is and you'll explain that.

But what -- and Arizona could put on its own form a demand for the information that it -- it wants to apply to people who submit the Federal form.

It seems like a very strange system.

So if somebody happens to fill out the Arizona form, their application may be rejected; whereas if they had filled out the Federal form, it would be accepted.

How can that be?

Patricia A. Millett: Well, there is two responses.

One, it's an open question whether what -- whether the State form for purposes of Federal elections can add new requirements, but we haven't challenged it, we haven't challenged here and I think it's--

Justice Samuel Alito: What statutory provision would you challenge that under?

There's -- there's a provision under the statute, the numbers are complicated and I don't have it on the tip of my tongue, it says what the State form must do and I didn't see anything in that that would -- that would preclude their requiring this additional proof.

Patricia A. Millett: --I think -- I think it's actually a very complicated question.

And so to be clear, there is statutory language, I think, going both ways on this question.

There is in 4(a)(2), which says the State form has to meet the criteria of 7(b), but then -- and then there is in 5(a)(6), which says, if you're going to be handing it out as your public office, it's the public agencies have to provide the form, it has to be equivalent.

But then in Section 2 -- I'm sorry to throw all these numbers, but I'm just trying to show you how it's complicated.

In Section 2, the very background for the Federal form is that it's in addition to whatever the States are already doing--

Justice Samuel Alito: Well, I've read all those provisions and -- all right.

Let's assume for the sake of argument that Arizona could do this on its own form.

You haven't argued that their form is illegal.

Patricia A. Millett: --Correct.

Justice Samuel Alito: This seems to me like a crazy system.

This is like the, you know, the IRS creating two different tax returns with different -- with different tax rates and different tax tables and how much you pay would depend on which particular form you happened to pick up and submit.

Patricia A. Millett: No, not -- not in this sense.

First of all, it would be very respectful of the States and Congress to arrive at a balance here, if it did that.

But Congress has made clear that there is this essentially safe harbor role for the Federal form and that -- and they can't hide it away.

It has to be available for the -- the driver's license and motor voter process.

It has to be handed out at the relevant public agencies, and the mail form is available to be handed out or online for people to find.

And so yes, could it be different -- it's an open question whether that's what Congress wanted for Federal elections or not or whether--

Chief Justice John G. Roberts: It's not just different forms.

You'd have different voter rolls then, right, depending on which form?

Patricia A. Millett: --No.

Chief Justice John G. Roberts: No?

Patricia A. Millett: Oh, I'm sorry.

Chief Justice John G. Roberts: I would have thought since you allow -- contemplate a State form that has different requirements than the Federal form, you would then end up with two different voter rolls.

Patricia A. Millett: No--

Chief Justice John G. Roberts: Some people that registered under the State form, some people that registered under the Federal form.

Patricia A. Millett: --As -- as of now, Arizona is doing it as a unitary system.

Because anyone who fills out the State form necessarily satisfies the requirement of the Federal form.

Chief Justice John G. Roberts: Yeah, but it doesn't work the other way.

Patricia A. Millett: It doesn't work the other way.

Chief Justice John G. Roberts: You can satisfy the Federal form, so you're on the Federal list, but not satisfy the State form, so you're not on the State list.

Patricia A. Millett: It doesn't work the other way at least for State elections.

For Federal -- for Federal elections, it has to be the same.

And so for Federal elections, it's a single roll.

It's up to States to decide how they want to deal with the State form.

At the time the Congress enacted this statute, about half of the States in 1993, including Arizona, had a postcard form where you just attested to citizenship under oath.

Justice Anthony Kennedy: The Court of Appeals said that there's a different preemption test under -- for this law under this Constitutional provision than there is under the Supremacy Clause.

It seems to me that that ignores the proposition that the State has a very strong and vital interest in the integrity of its elections, even when those, and perhaps especially when those are elections of Federal officials.

And it seems to me the Ninth Circuit's new test did not give sufficient weight to that interest.

Patricia A. Millett: Well, first of all, the Ninth Circuit's test came out of this Court's language in Siebold.

It had both conflict language and harmonization, both of which appear in this Court's decision in Siebold.

But to get directly to your question of whether there should be a different test, I don't think it matters on the outcome in this case, because the preemption is in those 31,550 people who couldn't register.

But I think the Election Clause is going to be very different in this sense -- in two critical senses.

And that is that the Elections Clause involves an authority in the States that is conferred by the Constitution itself.

May I finish?

Chief Justice John G. Roberts: Please.

Patricia A. Millett: It -- it has no reserve power that's being protected there, and by the very nature of the Election Clause is that Congress only acts when it means to displace or change what the States are doing.

And so the necessity of having a presumption makes no sense in this context, particularly when you're talking again about a Federal form for Federal elections of Federal officials by Federal voters who need a direct line of accountability.

Chief Justice John G. Roberts: Thank you, counsel.

Patricia A. Millett: Thank you.

Chief Justice John G. Roberts: Mr. Srinivasan?

ORAL ARGUMENT OF SRI SRINIVASAN, FOR THE UNITED STATES, AS AMICUS CURIAE, SUPPORTING THE RESPONDENTS

Sri Srinivasan: Thank you, Mr. Chief Justice, and may it Please the Court:

The National Voter Registration Act aims to streamline the process of registration for applicants, and the provisions that provide for the establishment of a Federal form embody that objective.

And I'd like to point to three features of the relevant statutory language that I think support our reading.

And the particular critical provision is at page 22A of the appendix to the Government's brief.

And I'm sorry, I know that the provisions are located in a number of areas, but the gray brief at page 22A has the critical provision in our view, which is one that Ms. Millett was pointing to.

And that's gg-7(b)(1).

Now, what this provision embodies is this understanding: That the EAC is the one who determines what the content of the Federal form is.

Not the States, but the EAC.

The States do have a role in this scheme, and I think it's important to understand what that role is.

The States have a consultative role at the front end.

And this is back at page 21A -- I'm sorry for skipping back.

But at page 21A at the bottom of the page, the EAC is to develop a form in consultation with the chief election officers of the States.

Justice Antonin Scalia: Mr. Srinivasan, the problem that I have with that is that the provision you're alluding to says that -- not that the State shall -- not that the commission “ shall ” require the information necessary to enable the appropriate State election official to assess eligibility, but it simply says that it “ may ” require only that information.

Now, is it conceivable that Congress intended that the Commission may not require some information that is necessary to enable the appropriate State election official to assess eligibility, but that the State may not require it either?

Is that a conceivable disposition of Congress?

Sri Srinivasan: I don't think it is, Justice Scalia, but I think the problem with that is in the premise.

I grant you that the statute says “ may require ”, but it says “ may require only ”, and I think the only fair way to read this provision is that the commission is to require the information that's necessary, but--

Justice Antonin Scalia: You think “ may require only ” means shall require only?

Is that -- is that your submission?

“ May require only ” means shall require only?

Sri Srinivasan: --It “ may require only ” in effect means shall require information that's necessary, but may only require that information.

I think the statute would make very little sense if the EAC discharged its statutory responsibility by having a Federal form that required nothing other than the name.

That wouldn't be within anybody's conceivable conception of a rational objective of Congress that would enable the EAC to--

Justice Antonin Scalia: It would not be a problem if the State could require it.

It would not be a problem.

When -- when the commission fails to do what enables the State to assess qualifications, the State'll do it.

No problemo.

Sri Srinivasan: --But I think the whole point of this, Justice Scalia -- and this is where I started, with all due respect -- is to come forward with a Federal form that streamlines the process of registration for applicants.

And if the regime that resulted were one in which the Federal form served very little purpose other than to set a floor, but then each of the 50 States could superimpose whatever additional requirements they wanted to, I think that would largely defeat the entire purpose of the Federal form.

Justice Stephen G. Breyer: And that's the grand -- to go back to your -- I see that as your grand purpose.

That's the grand purpose argument.

And then there is the subsidiary purpose argument, which you started to make, which I wanted to hear, which has to do with (b).

It says may require only such identifying information.

So I thought, well, they could require less, less than what's necessary.

They could.

It says you can't require more.

They could require less.

But suppose they put a statement in and they say, in respect to this qualification, nothing to do with citizenship: This is what is necessary.

No more.

But we've done everything that is necessary.

Then could a State come along and say, we think more is necessary?

Sri Srinivasan: I don't think so, Justice Breyer.

Justice Stephen G. Breyer: And it's the word “ necessary ” that you thought -- that that would be dependent upon?

Sri Srinivasan: Coupled with the statutory objective, because what this provision says is that the EAC, in consultation with the States, is supposed to create a form that imposes the following burden on individuals, on individuals.

That's the key.

Justice Stephen G. Breyer: Well, I know I'm not -- I'm just not quite -- the last step of what I wanted you to think of was this--

Sri Srinivasan: Sure.

Justice Stephen G. Breyer: --It does say “ may require only ”--

Sri Srinivasan: Correct.

Justice Stephen G. Breyer: --“ that which is necessary ”.

So if they said -- and this what is necessary.

Fine.

Pretty tough for the State to say I'm going to add some things.

But the very next subsection does use the words “ shall include ”.

So I wonder -- and that has to do with citizenship.

So I wonder if that is a statement by Congress that in respect to citizenship, that is what is necessary.

Sri Srinivasan: I do think that that's what Congress contemplated was necessary, but not to the exclusion of this, which is that if a State comes forward to the EAC, which is a body that's charged with responsibility for defining the contents of the Federal form, and says we think something more is necessary, take a look at what we want to submit to you, and you should amend the Federal form, or you should at least amend our State-specific portion of the Federal form to include this requirement in it, the EAC could make that determination.

Congress made that responsibility--

Justice Ruth Bader Ginsburg: Mr. Srinivasan, I think General Horne told us that -- that the State did ask the Commission, but the Commission had only two members; the Commission didn't act on it.

Only the legal director.

So how could they get court review of an agency decision that was never made?

Sri Srinivasan: --No, Justice Ginsburg, to be clear, I don't -- I don't think General Horne would disagree with this -- the executive director initially responded to the request by rejecting it, but it did go to the full Commission, and at that point, there was a fully-constituted Commission.

The Commission divided by a vote of 2-2.

And so in that instance, the Commission took no action.

But a 2-2 vote is a -- qualifies as a rejection.

And that is something that could -- potentially could have been the subject of judicial review.

Now, I'm obviously not going to give away any Federal offenses but--

Justice Antonin Scalia: Yes.

And since you believe that “ may require only ” means “ shall require only ”, in judicial review, a determination before the -- the Court would be whether indeed this information is necessary to enable the State to assess the qualifications, right?

Sri Srinivasan: --Well, that--

Justice Antonin Scalia: And the district court here certainly thought that was necessary.

So you're going to be in -- in bad shape -- the government is going to be -- the next time somebody does challenge the Commission determination in court under the Administrative Procedure Act.

Sri Srinivasan: --I mean, obviously, I'd respectfully disagree with that.

I think we'll be in perfectly good shape.

And I think part of the reason is that this -- requiring a statement under penalty of perjury is the traditional way in which States enforce their qualifications.

The legislative history shows that Congress understood that that was the traditional way.

What the State seeks to do here is do something over and above the traditional way to enforce qualifications.

Chief Justice John G. Roberts: As -- as Louisiana has done.

Sri Srinivasan: Well, Louisiana is not -- is not situation-specific here, Your Honor, as Ms. Millett was pointing out--

Chief Justice John G. Roberts: But it's certainly things that were not required in the Federal form.

Sri Srinivasan: --That's correct.

And that was submitted to the EAC, and the EAC approved of it.

And I think that's the critical distinction here.

Chief Justice John G. Roberts: How is that consistent with the statutory purpose to streamline registration?

Sri Srinivasan: Because the statute -- the statute seeks to streamline registration, but it's not directed to the exclusion of all other objectives.

And the EAC is charged with balancing the various competing statutory objectives.

And it concluded in -- with respect to the Louisiana submission -- that that one was okay.

I do think that's different.

A, because the EAC approved of it; and B, because the specific forms of identification that are outlined in Louisiana addition were exactly those forms of identification that Congress already said was okay at either the registration stage or the voting stage.

Justice Antonin Scalia: You got to stop saying the Commission approved of it.

2-2 is not approving.

You could say the Commission was unable to disapprove of it.

Sri Srinivasan: Well, I think we are talking about two different things, Justice Scalia.

I'm talking about Louisiana.

Justice Antonin Scalia: I'm sorry.

I'm sorry.

Sri Srinivasan: I was trying to answer the Chief Justice's question.

In Arizona, it was 2-2.

Now, I want to point out one other critical feature of the statute, and General Horne alluded to this and said that there's no way to look in the statute and see a distinction between on one hand what the individuals can be required to provide, and on the other hand what the State can then do with the individual information to crosscheck it.

And the statute presupposes that the State can conduct its own investigation to crosscheck the information that the individual supplies.

And then the critical provision to see that is at page 19A of the appendix to the government's brief.

And that's a provision that deals with a different qualification, felony history.

But it operates on this assumption that States can conduct their own investigation, which makes all the sense in the world.

This provision that's in subsection (g) at the top of the page, which is 1973gg-6(g), what this does is it tells the United States Attorney's Offices that when there is a Federal conviction of a felony, the U.S. Attorney's Office is supposed to give written notice of that conviction to the chief State election official.

And what's the State -- chief State election official going to do with that?

Well of course, what they're going to do is they're going to take a look at the Federal form, they're going to see what the individual said about their felony history, and they're going to crosscheck it -- this information that they got from the United States Attorney -- to make sure that the information on the form is accurate.

Justice Samuel Alito: May I ask you a question that I asked Ms. Millett?

Does the United States think that the Arizona form is illegal?

And if it is not, what sense does it make to have a system in which whether or not someone will successfully register depends on the happenstance of the particular form that the person fills out.

Sri Srinivasan: Here is the sense it would make -- even if -- if Arizona had the authority to add to the Federal requirements on its own State form, the sense it would make is this: That the Federal form always operates as a form.

It's always there for somebody to use to register, regardless of what the State form might do in addition.

And that has -- I take Your Honor's assumption -- if I can just briefly finish -- I understand Your Honor's point that there is a practical question about whether that would ever be practicable or useful, given that an individual would want to use the State form for State, local and Federal elections, but there is also the -- the well-understood practice of organizations that go out to register individuals to vote.

And they can use the Federal form, and the Federal form would suffice.

Chief Justice John G. Roberts: Thank you, counsel.

General Horne, two minutes.

REBUTTAL ARGUMENT OF THOMAS C. HORNE ON BEHALF OF THE PETITIONERS

Thomas C. Horne: Thank you, Your Honor, and I'll apologize in advance for talking really quickly.

The -- my friend says in discussing Section 7(b)(1) that it would not be rational to require only the signature.

But that's exactly what they did.

All they required was the signature, and 7(b)(1) has nothing to do with that; 7(b)(2) requires a signature.

So what the EAC chose to do under 7(b)(1) was exactly nothing, zero, which -- which emphasizes the point that this is the responsibility of the States, and that's how they understood it.

With respect to the license having -- we cited ARA Section 28-3173, an Arizona statute in our reply brief that provides that you -- you must renew every 12 years.

So by 2004, the problem that my friend spoke about was completely erased.

Everybody had a new license which would be sufficient for this purpose, 100 percent.

They admit that we can reject applications by reference to other -- by reference to other documentation but they try to draw a distinction between that and asking the person to write down the driver's license number.

But there is nothing in the statute that justifies that distinction.

A reference to criminal history has nothing to do with whether or not there is a distinction with respect to citizenship between looking at other documents and asking the person for their driver's license numbers.

In both cases it's something outside of the form and they have admitted we can go outside the form.

With respect to legislative history, Your Honor, I think the key thing -- Mr. Justice Breyer, in your question was, it's only in one place.

There are a lot of other places that go the other way.

So we cannot conclude from that one place what the majority of Congress expected.

With respect to HAVA, in HAVA, the Congress had another opportunity to expressly state that the State could not look to external evidence and ask for additional evidence, and they chose not to do that.

And so I would say that HAVA is further evidence that Congress was not choosing to prohibit us from asking for additional information to fulfill our function, if it's necessary, of being sure that the applicant is eligible to vote.

With respect to the Siebold case, the court in Siebold specifically said there will be no preemption unless there is a direct conflict and only to the extent of that conflict, and in that connection -- one last sentence, Your Honor -- if there are two plausible interpretations, ordinary principles of Federalism say one should not choose the interpretation that results in preemption, and the same thing applies with respect to the canon of constitutional accordance.

Thank you, Your Honor.

Chief Justice John G. Roberts: Thank you, counsel.

The case is submitted.