Arizona’s Proposition 200: What The Constitution Really Says About Voter Qualifications & Exposing The “Elections Clause” Argument.

By Publius Huldah.

In the recent opinion (October 26, 2010) of the Ninth Circuit Court of Appeals in Gonzalez v Arizona 200, ¹ Judges Sandra S. Ikuta & Sandra Day O’Connor overturned an initiative (Proposition 200) passed by the People of Arizona which … [prepare yourself] … requires Arizona “residents” who apply to register to vote, to provide … [this is really quite shocking] … documentary proof of citizenship!  Yes, the People of the State of Arizona, which has been overrun with illegal Mexican aliens, want to ensure that only citizens vote.

But Ikuta & O’Connor say The people of Arizona may not do that. Those two judges say that Proposition 200 is void as inconsistent with the National Voter Registration Act of 1993, 42 U.S.C. § 1973gg (NVRA), the “central purpose” of which is “to increase voter registration by streamlining voter registration procedures” (Opinion p. 30). ² The NVRA doesn’t require applicants for voter registration to provide documentary proof of citizenship. Therefore, say Ikuta & O’Connor, the States may not require it.

Nonsense!  The NVRA is unconstitutional as outside the scope of the legislative powers granted to Congress by the Constitution.  It is also contrary to Art. I, Sec. 2, cl. 1, U.S. Constitution, which shows that prescribing qualifications and registration of voters is a pre-existing power expressly reserved by the States.

Congress is granted by Art. I, Sec. 4, cl. 1, a very limited power over the “holding” of “Elections”:  This is the so-called “elections clause” which the federal government is using to gobble up Art. I, Sec. 2, cl.1.  But the federal government acts unlawfully because the “elections clause” is expressly restricted to “The Times, Places and Manner of holding Elections” – it does not extend to prescribing qualifications & registration of voters.

The U.S. Constitution Enshrines the Pre-existing Practice Where the People of the States Qualify & Register Voters.

1.   Article I, Sec. 2, clause 1, U.S. Constitution, says:

“The House of Representatives shall be composed of members chosen every second Year by the People of the several States, and the Electors in each State shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature.”

This tells us the States set the qualifications for electors [“voters”]:  Whoever votes in elections for the State House, is eligible to vote for members of the federal House of Representatives.

This is confirmed in Federalist No. 52 (2nd para):

“The first view to be taken of …[the House of Representatives] relates to the qualifications of the electors [voters] and the elected. Those of the former are to be the same with those of the electors of the most numerous branch of the State legislatures. 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 submitted it to the legislative discretion of the States, would have been improper for the same reason; and for the additional reason that it would have rendered too dependent on the State governments that branch of the federal government which ought to be dependent on the people alone. To have reduced 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 provision made by the convention appears … to be the best that lay within their option. It must be satisfactory to every State, because it is conformable to the standard already established, or which may be established, by the State itself. It will be safe to the United States, because, being fixed by the State constitutions, it is not alterable by the State governments, and it cannot be feared that the people of the States will alter this part of their constitutions in such a manner as to abridge the rights secured to them by the federal Constitution. “

Federalist No. 57 (5th para) says:

“Who are to be the electors of the federal representatives? …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. ” 

Before the U.S. Constitution was ratified, the People of the States qualified and registered voters; these qualifications were set forth in their State Constitutions, and they differed from State to State.  This is the practice which was enshrined in Art. I, Sec. 2, cl. 1, U.S. Constitution.

2.  So!  Everyone understood that in the U.S. Constitution, the States – or rather, the People of the States by means of their State Constitutions – retained authority to qualify and register voters.

Accordingly, even though Sec.  1 of the 14th Amendment (ratified 1868) made citizens of the freed slaves, they still couldn’t vote unless their States let them.  Section 2 merely said that if a State denied suffrage to such new citizens, then the State’s population number for purposes of apportioning Representatives would be reduced.

Thus, in 1868, everyone still understood that The  States had reserved the power over qualification and registration of voters.

The Amendments to the U.S. Constitution Addressing Suffrage.

3. Everyone understood that Congress couldn’t simply make a law requiring the States to register former slaves to vote.  Hence, the 15th Amendment (ratified in 1870) says the right of citizens to vote shall not be denied “on account of race, color, or previous condition of servitude”.

4.  Now let us look at the 17th Amendment (ratified 1913) which provides for the popular election of U.S. Senators.  Clause 1 reiterates the Principle in Art. I, Sec. 2, cl.1, that qualifications for electors [voters] are set by the States:

“The Senate of the United States shall be composed of two Senators from each State, elected by the people thereof, for six years; and each Senator shall have one vote.  The electors in each State shall have the qualifications requisite for electors of the most numerous branch of the State legislature.”

See?  In 1913, everyone still understood that The States decide who may vote.

5.  Thereafter, additional Amendments provided that the right of citizens to vote shall not be denied or abridged on account of sex (19th Amendment, ratified 1920), failure to pay any tax (24th Amendment, ratified 1964), or age for citizens who are eighteen years of age or older (26th Amendment, ratified 1971).

The reason for the Amendments was this:  Everyone understood that Congress has no authority to make laws requiring States to register blacks, women, tax avoiders, or children!  The States retain complete control over the qualification and registration of voters  – and with those four Amendments, they agreed they wouldn’t deny suffrage on account of  being in one of those four categories of people.

What the U.S. Constitution, as Amended, Now Says about Qualifications of Voters

6.  So!  Under Art. I, Sec. 2, cl. 1; the 17th Amendment, cl. 1; and the 15th, 19th, 24th, & 26th Amendments, The People of the States may set whatever qualifications they like for registering citizens to vote, as long as they do not deny it to any citizen on account of race (15th Amendment), sex (19th Amendment), failure to pay a tax (24th Amendment), or age for those 18 years or more (26th Amendment).  States are free to deny registration to black citizens, female citizens, tax avoider citizens, and citizens over the age of 18 on other grounds – such as conviction of a felony, or illiteracy in English. ³  States may require, as a condition to registering to vote, that citizens pass a Logic test, outline The Federalist Papers, take an Oath to support the Constitution, and recite the Declaration of Independence by Heart!  States may prohibit welfare recipients – the “Take It From Somebody Else And Give It To Me” block – from voting altogether.   The only way the federal government can lawfully force any one State to register the illiterates, the irrational, the ignorant, the welfare parasites, or invading aliens, is by Constitutional Amendment ratified by three fourths of the States (Art. V).

The Dishonest “Elections Clause” Argument.

7. The federal government is now using Art. I, Sec. 4, cl.1, the “elections clause”, to strip the People of the STATES of their power (reserved by Art. I, Sec. 2, cl. 1 & the 17th Amendment, cl. 1) to qualify & register voters.

The “elections clause” (Art. I, Sec. 4, cl.1) says:

“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.”

Times?  Places of Chusing Representatives?  Manner of “holding Elections”? What do these have to do with qualifying and registering voters?   In  Federalist No. 60 (next to last para), Hamilton explains that prescribing qualifications of the voters

” ….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, the MANNER of elections. The qualifications of the persons who may choose or be chosen, as has been remarked upon other occasions, are defined and fixed in the Constitution, and are unalterable by the legislature.” [capitals are Hamilton’s]

Fancy that! Article I, Sec. 4, cl. 1, means what it says:  Congress’ authority is restricted to the “times”, “places”, & “manner” of “holding elections”!   And Congress’ authority does not extend to prescribing qualifications of electors:  That is “defined and fixed” in Art. I, Sec. 2, cl. 1, and is “unalterable” by Congress.

Perhaps because Hamilton foresaw a day when we would be plagued with federal judges too ignorant, sloppy, or dishonest to adhere to the plain & obvious meanings of  “time”, “place”, & “manner”, he spelled it out in Federalist No. 61:

“TIME” refers to when elections are held. Hamilton explains that States had been conducting elections from March to November; and that uniformity in the time of elections is necessary “for conveniently assembling the [federal] legislature at a stated period in each year” (4th & 5th paras).

“PLACE”: Hamilton points out that the suffrages of citizens ⁴ living in certain parts of  the States could be defeated by restricting the place of election for Representatives in the House to “an INCONVENIENT DISTANCE from the elector” (2nd para).

James Madison discusses “MANNER of holding Elections” in The Records of the Federal Convention of 1787, vol. 2, August 9, 1787:

“Mr. Madison: … the Legislatures of the States ought not to have the uncontrouled right of regulating the times places & manner of holding elections. These were words of great latitude. It was impossible to foresee all the abuses that might be made of the discretionary power. Whether the electors should vote by ballot or vivâ voce, should assemble at this place or that place; should be divided into districts or all meet at one place, shd all vote for all the representatives; or all in a district vote for a number allotted to the district; these & many other points would depend on the Legislatures. and might materially affect the appointments …. what danger could there be in giving a controuling power to the Natl. Legislature? Of whom was it to consist? 1. of a Senate to be chosen by the State Legislatures…. 2. of Representatives elected by the same people who elect the State Legislatures…” [emphasis added]

Rufus King in the Massachusetts Convention said: [The Records of the Federal Convention of 1787, vol. 3, January 21, 1788:

“Hon. Mr. King rose to pursue the inquiry, why the place and manner of holding elections were omitted in the section under debate. It was to be observed, he said, that in the Constitution of Massachusetts, and other States, the manner and place of elections were provided for; the manner was by ballot, and the places towns; for, said he, we happened to settle originally in townships…” [emphasis added]

And so WE see that “MANNER of holding Elections” refers to such things as paper ballots or show of hands, the place of voting, and whether the States will be divided into congressional districts for purposes of electing Representatives.

8.  “Holding Elections”is the actual voting part of the process.  It has nothing whatsoever to do with registering voters!  Webster’s American Dictionary (1828), defines “Election”:

“The act of choosing; choice; the act of selecting one or more from others…The act of choosing a person to fill an office or employment, by any manifestation of preference, as by ballot, uplifted hands or viva voce; as the election of a king, of a president, or a mayor.”

So!  Now YOU know exactly what Art. I, Sec. 4, cl. 1 means.  Now, let us see what the Ninth Circuit did to Our Constitution.

The Ninth Circuit’s Opinion in Gonzalez v. Arizona 200

9.  The majority opinion is a tangled web of 62 pages. I address three points: (a) They misrepresented what Alexander Hamilton & James Madison said; (b) They ignored Art. I, Sec. 2, cl. 1; and (c) They rewrote Art. I, Sec. 4, cl. 1.

(a) Five of the Federalist Papers specifically address Art. I, Sec. 2, cl. 1 & Art. I, Sec. 4, cl. 1:  Federalist No. 52, 57, 59, 60, & 61.  This paper honestly sets forth the gist of what these five Papers say.

But Ikuta & O’Connor ignored the passages this paper brings to your attention, and selected only the following two quotes from Federalist No. 59 (and one from No. 33 where they misrepresented what Hamilton said about the “supremacy clause”) ⁵ On page 15, in support of their false assertion that

“… The Framers decided that Congress should be given the authority to oversee the states’ procedures related to national elections as a safeguard against potential state abuse. See U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779 …”

they quote from Federalist No. 59:

“…[n]othing can be more evident, than that 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…”

On page 16 at footnote 8, they say:

“Alexander Hamilton described the need for congressional oversight of the states as follows: “[The Framers] have submitted the regulation of elections for the federal government, in the first instance, to the local administrations; which, in ordinary cases, and when no improper views prevail, may be both more convenient and more satisfactory; but they have reserved to the national authority a right to interpose, whenever extraordinary circumstances might render that interposition necessary to its safety.” The Federalist No. 59.

That’s it!  No mention of Federalist Nos. 52, 57, 60 & 61 which are quoted above.  Furthermore, Federalist No. 59 is the first of  a sequence of three papers which focus on Art. I, Sec. 4, cl. 1; and in this introductory paper, Hamilton explains why Congress must have the power granted by Sec. 4:  Otherwise, every election might result in the dissolution of the Union, if States prevented an election.  And as YOU have already seen, the meat of Hamilton’s discussion of Sec. 4 is in Nos. 60 & 61.

Ikuta & O’Connor next imply (page 16) that James Madison’s words at the Federal Convention of 1787 support their assertion that

“…the Framers approved language giving Congress power to “make or alter” the states’ regulations. See 5 Elliot’s Debates 401-02 (statement of James Madison)…”

5 Elliot’s Debates 401-02 is a different edition of  The Records of the Federal Convention of 1787, vol. 2, THURSDAY, AUGUST 9, 1787. [here], which is quoted at length above.  And Madison is quite clear that the “Natl. Legislature[‘s]” “controuling power” is only over “the times places & manner of holding elections“, and he illustrates what that phrase means.

So the Ninth Circuit’s representation that Madison said Art. I, Sec. 4, cl. 1 gave to Congress the  broad power to make or alter all of a state’s “regulations” or procedures related to national elections is false.

(b) Not only did Ikuta & O’Connor ignore Art. I, Sec. 2, cl. 1, they perpetuated another falsehood:

As shown above in Federalist No. 52 (2nd para), which discusses Art. I, Sec. 2, cl. 1, the States retained their preexisting power to qualify & register voters.  The Framers expressly declined to reduce “the different qualifications [for voters]  in the different States to one uniform rule”, and they drafted a clause [Art. I, Sec. 2, cl. 1] which “is conformable to the standard already established, or which may be established, by the State itself.”

In spite of this, Ikuta & O’Connor said on page 16:

“…the authority to regulate national elections “aris[es] from the Constitution itself,” and is therefore “not a reserved power of the States.” U.S. Term Limits, 514 U.S. at 805. Because federal elections did not come into being until the federal government was formed, individual states have no inherent or preexisting authority over this domain. See d. at 804-05.”

And on page 19:

“… the states’ sole power over national election procedures is that delegated by the Elections Clause, U.S. Term Limits, 514 U.S. at 805, and states otherwise have no reserved authority over this domain … “

Do you see?  Their claim that the states have “no inherent or preexisting authority” or “reserved authority” over qualifications & registration of voters, is demonstrably FALSE.

Lawyers who don’t think will say the Ninth Circuit has no choice but to follow the supreme Court in U.S. Term Limits, Inc. v. Thornton.  But that is not true.  Our Oath of Office is to support the Constitution – not to obey the supreme Court (Art. VI, cl. 3).  Are we stupid sheep who blindly follow the supreme Court no matter what they say?

Furthermore, supreme Court opinions are not “law” – they are decisions in cases.  The “supreme Law of the Land” is expressly restricted to The Constitution and to those Acts of Congress and treaties which are made pursuant to the Constitution. (Art. VI, cl. 2).

(c) Finally, let us see how Ikuta & O’Connor rewrote Art. I, Sec. 4, cl. 1. As you know, that clause actually says:

“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.”

Now watch as, by means of a series of false statements, they transform “Times, Places and Manner of holding Elections” into an unlimited grant of power to Congress to do precisely what Hamilton said “forms no part of the power to be conferred upon the national government” (Federalist No. 60, next to last para):

On p.15 of their Opinion, they said:

“… the Elections Clause gives state governments initial responsibility to regulate the mechanics of national elections, “but only so far as Congress declines to preempt state legislative choices.” Foster v. Love, 522 U.S. 67, 69 (1997) …”

Also on page 15:

“… The Framers decided that Congress should be given the authority to oversee the states’ procedures related to national elections … See U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 808-09 (1995)…”

On page 17:

“… Not only does the Elections Clause grant Congress authority to supersede state election laws…”

On pages 17 & 18:

“…a state’s role in the creation and implementation of federal election procedures under the Elections Clause is to administer the elections through its own procedures until Congress deems otherwise; if and when Congress acts, the states are obligated to conform to and carry out whatever procedures Congress requires. See Foster, 522 U.S. at 69″.

On page 20:

“… Because the Elections Clause empowered Congress to enact the NVRA, Wilson, 60 F.3d at 1414…”

On page 25:

“…Under the Elections Clause, Congress had the power “to provide a complete code for congressional elections, not only as to times and places, but in relation to . . . registration.” Smiley v. Holm, 285 U.S. 355, 366 (1932)…”

On page 34:

“… Given that the Elections Clause gives Congress ultimate authority over the federal voter registration process, Colgrove, 328 U.S. at 554…”

Their words are demonstrably false.  These judges rewrote Art. I, Sec. 4, cl. 1 in order to uphold the NVRA which purports to give Congress total control over voter qualification and registration.

Conclusion

10.  In Federalist No. 60 (1st, 4th, & next to last para), Hamilton discusses the concern that Art. I, Sec. 4, cl. 1, might be used by the federal government “in such a manner as to promote the election of some favorite class of men in exclusion of others” via regulation of the “places”, “time and manner” of elections.  Hamilton says this would never happen because:

“…qualifications…for those who may elect or be elected …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, the MANNER of elections. The qualifications of the persons who may choose or be chosen, as has been remarked upon other occasions, are defined and fixed in the Constitution, and are unalterable by the legislature [Congress]”

But the federal government has been using Art. I, Sec. 4, cl. 1 to gobble up Art. I, Sec. 2, cl. 1 in order to mandate the extension of suffrage to Mexican and Muslim aliens, in order “to promote the election of some favorite class of men in exclusion of others”.  And who is this “favorite class of men” whom they want elected?  More statists.

Congress has no authority to make laws which “increase voter participation”.  Congress’ authority is expressly restricted to the “Times, Places, and Manner of holding Elections”, and Hamilton & Madison show us exactly what that means.

Hamilton says that if the federal government were to attempt such a thing, it would cause “an immediate revolt of the great body of the people, headed and directed by the State governments”(2nd & last paras).  Do we have the courage to stand up and honor our Oaths to support The Constitution?  Are we willing to make the effort?

11. The People of the State of Arizona are well within their pre-existing, reserved, and retained rights, enshrined by Art. I, Sec. 2, cl. 1, to require applicants for voter registration to provide documentary proof of citizenship.  Qualification and registration of voters “forms no part of the power to be conferred upon the national government” (Federalist No. 60, next to last para).

Endnotes:

¹  When I wrote this paper during November/December 2010, I used the pdf edition of the Court’s opinion at the Ninth Circuit’s website.  But that version of opinion was later removed from the Ninth Circuit’s site  – or it was relocated and I can’t find it.  There are differences between the original version of the opinion and the version which has been published here:   https://caselaw.findlaw.com/us-9th-circuit/1542559.html

² The majority opinion sets forth the gist of the National Voter Registration Act:

“The NVRA is a comprehensive scheme enacting three significant changes to federal election registration procedures nationwide: (1) it creates a standard “Federal Form”…for registering federal voters; (2) it requires states to establish procedures to register voters for federal elections according to three prescribed methods; and (3) it regulates maintenance of voting lists. See 42 U.S.C. § 1973gg et seq. (p. 25)

…the NVRA requires states to make registration opportunities widely available, at the motor vehicle bureau, § 1973gg-3, by mail, § 1973gg-4, and at public assistance, disability service, and other designated state offices, § 1973gg-5 … the NVRA eases the burdens of completing registration forms. At the motor vehicle authority, for instance, voter registration must be included as part of the driver’s license application and the combined form cannot require duplicative information. § 1973gg-3(c)(2)(A). The NVRA also regulates the Federal Form to meet its goal of eliminating obstacles to voter registration. See§ 1973gg(b)(1)-(2). Thus, the NVRA forbids the EAC from including any identifying information beyond that “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.” § 1973gg-7(b)(1)…” (p. 30)

³  The federal government banned State literacy requirements for voting, claiming that they dis-proportionally disenfranchise black citizens.  But the Constitution doesn’t give the federal government authority to dictate what States must and must not do re voter eligibility & registration – other than that States may not deny or abridge the right of citizens to vote on account of race (15th Amdt.), sex (19th Amdt.), failure to pay the tax (24th Amdt.), or age for citizens of eighteen years or more (26th Amdt.).  If the federal government wants to force any State to allow illiterates to vote, it must get an Amendment ratified by three fourths of the states which says that the right of citizens to vote shall not be denied or abridged on account of  illiteracy. Likewise, if they want to force any State to allow illegal aliens to vote, they must get an Amendment ratified by three fourths of the states which says that illegal aliens may vote.

⁴ Voting in this Country has always been restricted to Citizens!  But not all citizens qualified to vote.

⁵ On page 18, they misrepresent what Hamilton said about the “supremacy clause” (Art. VI, cl. 2).  Go here to see what Hamilton really said about it.

December 5, 2010;  revised April 1, 2014; July 27, 2018.