The U.S. Supreme Court’s October Term 2012 includes a number of significant cases affecting the states including two same-sex marriage cases, a challenge to the constitutionality of Section 5 of the Voting Rights Act and a claim that the National Voting Registration Act preempts Arizona’s evidence-of-citizenship requirement to register to vote.
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About the Authors
Geoffrey Eaton is a partner in the Washington, D.C., office of Winston Strawn LLP and a member of the firm’s appellate litigation group. He has represented Winston clients in a variety of courts—including the U.S. Supreme Court—in a diverse array of matters, ranging from the application and scope of the dormant Commerce Clause to product liability, tax disputes, First Amendment freedoms and civil rights claims.
Lisa Soronen is the executive director of the State and Local Legal Center. She files amicus curiae briefs to the U.S. Supreme Court on behalf of members of the Big Seven in cases involving federalism, organizes moot courts for attorneys representing state and local government at the Supreme Court, and is a resource to Big Seven members on legal issues affecting state and local government, particularly at the Supreme Court level. Members of the Big Seven are The Council of State Governments, National Governors Association, National Conference of State Legislatures, National League of Cities, U.S. Conference of Mayors, National Association of Counties and the International City/County Management Association.
Those who thought it impossible for the U.S. Supreme Court’s October Term 2012 to be as
exciting as its October Term 2011—in general or in regard to federalism issues—have been proved wrong. Four of the most prominent cases of the current term are classic federalism cases that have significant implications for the states. Two address same-sex marriage. The first asks whether the federal government can define who is able to receive the federal benefits of marriage. The second, viewed broadly, asks whether states can disallow same-sex marriage. The other two cases involve voting rights. One is a challenge to Section 5 of the Voting Rights Act, and asks the Supreme Court to decide whether a successful civil rights law that substantially impedes the right of states to change voting requirements is constitutional. In the other, Arizona is once again under the Supreme Court’s scrutiny in an immigration-related case—this time intertwined with election procedures. The Supreme Court will decide whether a heightened pre-emption test applies to the Elections Clause and whether the National Voting Registration Act pre-empts an Arizona law that requires people who are registering to vote to show proof they are U.S. citizens.
Same-sex Marriage Cases
The Supreme Court has accepted two cases involving same-sex marriage. One way to look at these cases is that the states’ rights position in each case could lead to a contradictory outcome on the gay rights question.
United States v. Windsor challenges the constitutionality of the Defense of Marriage Act, known as DOMA, which defines marriage solely as a union between a man and a woman for the purposes of federal law and programs such as Social Security benefits, Family Medical Leave Act rights and federal estate taxes. Edith Windsor was lawfully
married to Spyer under New York state law. Spyer died and left Windsor her entire estate. If not for DOMA, Windsor would not have had to pay almost $400,000 in federal estate taxes.
The Second Circuit agreed with Windsor that DOMA is unconstitutional. The court applied intermediate scrutiny and rejected Congress’ reasons for adopting DOMA, which included maintaining a consistent federal definition of marriage, protecting the fisc, avoiding “the unknown consequences of a novel redefinition of a foundational social institution” and encouraging “responsible procreation.” State law, not federal law, has historically defined marriage. Same-sex marriage proponents in this case argue that DOMA fails equal protection, at least in part, based on principles of federalism and state sovereignty.
Hollingsworth v. Perry involves a challenge to California’s Proposition 8, which amended California’s constitution to prohibit same-sex marriage after the California Supreme Court recognized a constitutional right to same-sex marriage. While a federal district court held Prop 8 unconstitutional based on the existence of a broad right to same-sex marriage, the Ninth Circuit agreed Prop 8 was unconstitutional, but only because it took away a right once recognized by the California Supreme Court. In this case, those opposed to same-sex marriage argue that states have a right to adopt a traditional definition of marriage.
Muddying the waters in these cases is the fact that the Supreme Court has asked the parties to argue whether the Court has authority to hear them. In the DOMA case, the parties had to argue whether the Supreme Court has jurisdiction to decide this case because the Obama administration is no longer defending DOMA and whether the party defending DOMA, a group of House GOP leaders, has standing to be in court. Similarly, in the Prop 8 case, California isn’t defending the measure. So the parties had to argue whether proponents of Prop 8 who intervened to defend it have standing to bring this case. Section 5 of the Voting Rights Act Case. In Shelby County, Alabama v. Holder, the Supreme Court will decide whether Section 5 of the Voting Rights Act, as reauthorized by Congress in 2006, is unconstitutional under the 14th or 15th amendments. Section 5 prohibits “covered jurisdictions”—including nine states—from making changes to state election procedures until they are pre-cleared by the U.S. attorney general or a three-judge federal district court in the District of Columbia. Preclearance may be granted only if the state demonstrates that the proposed change has neither the purpose nor the effect of denying or abridging the right to vote on account of race or color. Preclearance significantly undermines covered states’ rights because it effectively prevents them from making any unilateral changes to election requirements.
The Supreme Court has repeatedly held that Section 5 is constitutional. But in 2009, in Northwest Austin Municipal Utility District No. One v. Holder, the Court questioned whether the “current burdens” that Section 5 imposes on the states are “justified by current needs,” and whether “its disparate geographic coverage is sufficiently related to the problem that it targets.”
The lower court upheld the constitutionality of Section 5 after considering the concerns the Supreme Court raised in Northwest Austin. With respect to the law’s burdens relative to current needs, the court pointed to evidence in the Congressional record indicating continuing disparities in minority voter registration and in minority representation in statewide offices; evidence of continuing racial discrimination against minority voters; and evidence that case-by-case litigation would be inadequate to address those continuing harms, especially when compared to the deterrent effect created by Section 5 preclearance. With respect to the law’s “disparate geographic coverage,” the court pointed to record evidence that racial discrimination in voting remains concentrated in covered jurisdictions.
National Voting Registration Act Case
The National Voting Registration Act created a “Federal Mail Voter Registration Form,” known as the federal form, and requires the states to accept and use that form when registering voters by mail. In 2004, Arizona voters passed Proposition 200, which required election officials to “reject any application for registration that is not accompanied by satisfactory evidence of United States citizenship.” Such evidence is not required by the federal form, which requires only an attestation of citizenship. In this case, the Supreme Court will decide whether the National Voting Registration Act pre-empts the evidence-of-citizenship requirement in Proposition 200.
The Ninth Circuit held that the voting registration act pre-empts Proposition 200 under the Elections Clause of Article I, Section 4, which provides that the time, place and manner of holding Congressional elections “shall be prescribed” by the state legislature, but also that Congress may “make or alter such regulations” as it sees fit. In light of the apparently unregulated authority conferred by that clause, the Ninth Circuit concluded that “the ‘presumption against pre-emption’ and ‘plain statement rule’ that guide Supremacy Clause analysis are not transferable to the Elections Clause context.” So, if a state election statute does not “operate harmoniously” with federal voter registration laws, “then Congress has exercised its power to ‘alter’ the state’s regulation, and that regulation is superseded” by the federal law. Applying that framework to this case, the Ninth Circuit concluded that Proposition 200 and the National Voting Registration Act do not “operate harmoniously.” While the voting registration act commands an Arizona election official to accept any registration that complies with the federal form, Proposition 200 commands that same official to reject that same registration if it lacks proof of citizenship.
Several states—including Alabama, Georgia, Kansas and Tennessee—have enacted proof-of-citizenship requirements substantially similar to those in Proposition 200, and a number of other states have grafted other requirements onto the existing federal form. The legality of all those state laws is cast into doubt by the Ninth Circuit’s decision.
The Supreme Court has accepted a number of less prominent cases covering a wide range of legal issues that will impact the states. The State and Local Legal Center has filed amicus curiae briefs in several cases involving the following questions:
City of Arlington & Cable, Telecommunications, and Technology Committee v. FCC
Should courts defer to a federal agency’s determination that it has authority to interpret a statute?
Delia v. E.M.A.
Does Medicaid pre-empt a state statute allowing the state to recover one-third of a Medicaid recipient’s tort settlement?
Maryland v. King
Does the Fourth Amendment allow states to collect and analyze DNA from people arrested and charged with serious crimes?
McBurney v. Young
Does a state statute violate the U.S. Constitution’s Privileges and Immunities Clause and the dormant Commerce Clause when it requires that only citizens have access to public records?
Koontz v. St. Johns River Water Management District
Do the essential nexus and rough proportionality tests apply to exactions that involve the dedication of money or services rather than land and does a taking occur if no land-use permit is issued?
Decker v. Northwest Environmental Defense Center & Georgia-Pacific West, Inc. v. Northwest Environmental Defense Center
Do National Pollutant Discharge Elimination System permits have to be obtained for channeled storm-water runoff from logging roads?
Los Angeles County Flood Control District v. Natural Resources Defense Council
Does the transfer of water within a single water body through a municipal separate storm sewer system constitute a discharge under the Clean Water Act?