Most people would consider the case Arizona v. Inter Tribal Council of Arizona to be about the outrageous attempt by Arizona Republicans to deny the vote to Arizonans of Latino heritage. Not so Justice Scalia, who sees the case as an opportunity to discuss the dictionary meaning of the word, “accept”. Here we have the epitome of a narrow ruling, where the Court does not address the important issues in a case, instead discussing recondite matters of word meanings and reading the commentaries on election law in the Federalist.
Justice Scalia notes that James Madison, the slaveholding contributor to the Federalist, believed the federal government should not set its own requirements considering who should be allowed to vote. To do so, wrote Madison, would by degrees subvert the Constitution. Madison's overriding concern here was that non-slaveholding states would pass laws permitting African-Americans to vote. This was the reason for the Constitution's limitation in this area.
The people no longer believe there should a right to hold slaves. Therefore, the Court should give no weight whatsoever to any comments written by 18th century slaveholders on whether the federal government should determine voter qualifications. The Fourteenth Amendment took this power away from the states by declaring
No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.
Arizona's voter registration requirement, passed in 2004, is just such a law. It erects barriers between voters and the ballot box. Studies have shown that 90% of the voters refused registration under the law were legally eligible to vote. The law crippled voter registration drives, which target first-time voters and voters newly arrived in the state.
The white supremacists who passed this law in Arizona got the results they wanted. The groups most affected by tougher registration rules are young, first-time voters, minorities, and the elderly. An objective evaluation of the effects of this law must bring it into conflict with the Voting Rights Act of 1965, which prohibits voting practices or procedures which discriminate on the basis of race, color, or ethnicity.
Once again we are faced with a situation where the laws are being violated by a small group of people who wield political power. These are the only people who could rectify the injustices they themselves are causing. Any other group that challenges these laws would require years of appeals and large sums of money.
We should not imagine that the conservatives on the court are colorblind. Justice Scalia knows that the framers had the same world view as slaveholders of that time, because they were in fact slaveholders. He personally favors rules that would exclude eligible voters from the rules, because his written opinion tells the supremacists of Arizona that they could make a similar law if they only followed his guidelines. They may, he writes,
request anew that the EAC[Election Assistance Committee] 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.
Those who want to suppress the vote of minorities should thank Justice Scalia for his helpful advice. None of the Justices mentioned that the right to vote is the foundation of our democracy, and that no law that prevents even one qualified voter from casting his vote should ever be ruled constitutional by this Court.