At the Constitutional Accountability Center's website, David H. Gans argues that the Supreme Court's decision in Arizona v. Inter Tribal Council was a big win for the federal government: Reaffirmation of Broad Congressional Power to Protect the Right to Vote in Federal Elections (somewhat contrary to this analysis by Lyle Denniston at SCOTUSblog).
Justice Scalia’s majority opinion turned to both constitutional text and history to show that the Elections Clause gives the federal government broad power to preempt state law in order to protect the right to vote in federal elections. “The Elections Clause has two functions. Upon the States it imposes the duty…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 entirely. This grant of power was the Framers’ insurance against the possibility that a State would refuse to provide for the election of representatives to the Federal Congress.” In line with this history, Justice Scalia’s opinion emphasized that the “Clause’s substantive scope is broad,” giving to Congress a “comprehensive,” “paramount,” power to regulate the mechanics of federal elections, including voter registration. …
It is not every day that progressives can have the opportunity to hail Justice Scalia for getting the Constitution’s text and history right, particularly when the power of Congress to protect individual rights is at stake, but Inter Tribal Council is worthy of celebration. In an originalist showdown with Clarence Thomas, Justice Scalia demonstrated that the Constitution’s text and history give Congress broad power to protect the right to vote in federal elections. At a time when states are engaging in voter suppression efforts, Justice Scalia’s reaffirmation of sweeping congressional power under the Elections Clause is a big deal.
At SCOTUSblog, Marty Lederman has an interesting post about a different issue: does Congress have power to decide who can vote? As he points out, (a) the opinion in Inter Tribal Council says directly that Congress does not have this power (it has only the power over the "Times, Places and Manner" of elections), but (b) a number of federal statutes do seem to regulate who can vote, and the Court in Oregon v. Mitchell (1970) could be read to give Congress this broad power. (I say "could be read" because the Court in Mitchell split multiple ways, with no majority opinion; Justice Black, who had the controlling vote, wrote only for himself).
On Congress' power over voter qualification, the constitutional text seems solidly against Congress, per Article I, Section 2 and the Seventeenth Amendment. It would take some powerful history to show otherwise, I would think. (Congress would of course have power to enforce constitutional requirements as to voting.)
Justice Black's opinion in Mitchell, finding broad congressional power, is just awful from a textual and historical standpoint — it finds without analysis that Congress' power over the "Times, Places, and Manner of holding elections" in Article I, Section 4, combined with the necessary and proper clause, allows Congress to set voter qualifications. But the textual structure is flatly to the contrary. Article I, Section 2 gives the states power to set voter qualifications in federal House elections (the Seventeenth Amendment has parallel language for Senate elections). Article I, Section 4 gives the states power to regulate the "Times, Places and Manner of holding elections" for federal representatives and then says that Congress has power to alter "such" regulations (that is, obviously, regulations pursuant to Article I, Section 4). That sets up an obvious textual dichotomy between who can vote (Article I, Section 2) and how they vote (Article I, Section 4). It's wholly contrary to the textual design to read Congress' Article I, Section 4 powers to override state powers given in a entirely different section. (And as for history, Black did not cite anything in support occurring earlier than the twentieth century).
Worse, Black's opinion allowed the federal government to set voter qualifications in federal elections but did not allow the federal government to set voter qualifications in state elections — even though Article I, Section 2 says without exception that "the Electors [for the federal House of Representatives] in each State shall have the Qualifications requisite for Electors of the most numerous branch of the State Legislature." So to the extent Inter Tribal Council overrules Mitchell (or at least Black's view of Mitchell), that shouldn't be any cause for regret.
UPDATE: Also, from Joey Fishkin at Balkinization: Justice Thomas' Originalism and the Civil War.
Posted at 6:27 AM