Opposition Brief — Wilson v. Voting Rights Coalition

‘eer

Supreme Court, U.S,

) FILED

No. 95-673 / DEC 26 1996

| CLERK

In The

Supreme Court of the United States

October Term, 1995

4

PETE WILSON, Governor of the State of California, et al.,

Petitioners,

VOTING RIGHTS COALITION, et al.,

Respondents.

7

On Petition for Writ of Certiorari

to the United States Court of Appeals

for the Ninth Circuit

*

BRIEF FOR RESPONDENTS IN OPPOSITION TO THE

PETITION FOR WRIT OF CERTIORARI

¢

Mark ROSENBAUM Rosert Rusin

Kart MANHEIM Counsel of Record

ACLU FounpaTION oF THEOporRE H. WANG

SOUTHERN CALIFORNIA Nancy M. STUART

1616 Beverly Boulevard Lawyers’ COMMITTEE POR

Los Angeles, California Crvit RiGHts orf THE SAN

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QUESTION PRESENTED

Whether U.S. Const., Art. I, § 4, which grants to

Congress supervisory authority to make or alter state

regulations of federal elections, authorizes the enactment

of the National Voter Registration Act, which regulates

states’ procedures for voter registration for federal elec-

tions.

TABLE OF CONTENTS

Page

OChgntios Puameeds 5. «6 < oa0.05-s went onbs eee eee i

TORR GE CTI won kvss 6 Sine C45 Crdines nena iv

STATENS GO TE CARS. oo scc cctv ieeverssvacs l

A. GRGRMIOMIE 6 iis cede eiee's vies uereeeesereeeen 1

D. FUORI TOE a5 cic vancs taxes eh cutueeneeee 2

C. Legislative History of the NVRA .............. 2

ED, Dentowians OF POs cso ieee iste ekees sence 4

E. Implementation of the NVRA................5. 7

SUMMARY OF ARGUMENT. .........ccccecceveees 9

ADADIEEETE. 0 key eyecnnuph ches eulaaeeiendstanameel 11

A. IN ENACTING THE NVRA, CONGRESS ACTED

SQUARELY WITHIN ITS POWER TO REGU-

LATE FEDERAL ELECTIONS UNDER ARTICLE

A Pee ye re ore re 11

1. Supreme Court precedent consistently

upholds Congress’ exercise of its supervisory

power over federal elections under Article I,

SOMO E n.6c0 certs inns cckivieibaeeuwilades 11

2. The plain language of Article I, Section 4

expressly authorizes Congress’ enactment of

CHD FEVER 6 oct tntsiens didn cetslueeesaci 16

3. The legislative history of Article I, Section 4

permits regulations by both federal and state

governments, but makes any federal regula-

oe NT eyeT rey te eee 20

TABLE OF CONTENTS - Continued

Page

B. IN VIEW OF THE UNBROKEN LINE OF CASES

ESTABLISHING CONGRESS’ AUTHORITY

OVER FEDERAL ELECTIONS, THIS CASE PRE-

SENTS NO SUBSTANTIAL TENTH AMEND-

NET GUEMNEUOIIG,. occ ccccccecccccce, tee 2

CONCLUSION ......... Perrier is

iv

TABLE OF AUTHORITIES

Page(s)

FeperAL Cases

Association of Community Organizations for

Reform Now (ACORN) v. Edgar, 56 F.3d 791

(Fon Cle, BOSS) oc vc nvccccccccsvcsesavcendacyvane passim

Association of Community Organizations for

Reform Now (ACORN) v. Edgar, 880 F.Supp.

1295 GUD. TR, 1996) occ cccsaccvccevcvccsscuness 11, 18

Ex Parte Clark, 100 U.S. (10 Otto) 399 (1879)........ 12

EEOC v. Wyoming, 460 U.S. 226 (1983) ............. 25

Garcia v. San Antonio Met. Transit Auth., 469 U.S.

DD CITE vcd vince end eccated dokesdesctvecurerert 25, 28

Hodel v. Virginia Surface Mining & Reclamation

eee GFE UV. BO CHOSE) cv kvicvecvstevsecanss 25, 28

McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316

IE a. dons vsvacn ducted dhedacavareen 23, 27

National Mutual Insurance Co. v. Tidewater

Tranmsten Go, By 25.2 Fee CEOGe) 6 ic vs bdveddiwaiedes 27

New York v. United States, 505 U.S. 144 (1992). . passim

Newberry v. United States, 256 U.S. 232 (1920)

rp eeevecct ide WeaceueRereees abau ces vaxteees 21, 22, 25

Oregon v. Mitchell, 400 U.S. 112 (1970).......... passim

Perez v. United States, 402 U.S. 146 (1971).......... 23

Puerto Rico v. Branstad, 483 U.S. 219 (1987)......... 26

Reynolds v. Sims, 377 U.S. 533 (1964) ................ 2

Ex Parte Siebold, 100 U.S. (10 Otto) 371 (1879) ..... passim

Smiley v. Holm, 285 U.S. 355 (1932)............. passim

kk eee

V

TABLE OF AUTHORITIES —- Continued

Page(s)

U.S. Term Limits, Inc. v. Thornton, 514 U.S. __,

See eh. GED weds donecncnn cove ¥eSs ee" passim |

United States v. Classic, 313 U.S. 299 (1941)..12, 13, 16

United States v. Gradwell, 243 U.S. 476 (1917) |

wkd Cae neko wits DERGED bee e bone beeeecerares 13, 15, 17, 22

United States v. Lopez, 514 U.S. __, 131 L.Ed.2d

gs EP Te Torre eee eee Pe Try PETTe 26 |

United States v. Manning, 215 F.Supp. 272 (W.D.

a ee ee ee ee ey eer eee 29

United States v. Mosley, 238 U.S. 383 (1915)...... 13, 16

Voting Rights Coalition v. Wilson 60 F.3d 1411 (9th

Re Sr ee eee ee passim

Wesberry v. Sanders, 376 U.S. 1 (1964).............. 16

Wilson v. United States, 878 F.Supp. 1524 (N.D.

Cy, SOU on GtR da dbbveKbeUeK eevee elires bean aeeee ce. 11

Ex Parte Yarbrough, 110 U.S. 651 (1883).......... 16, 28

DockeTep CASES

Association of Community Organizations for

Reform Now (ACORN) v. Miller, Nos. 4:95-

CV-45, 1:95-CV-184, 1:95-CV-386 (W.D. Mich.

BT Re on ecb bb seve s tape siessi secs e oes 11, 18

Association of Community Organizations for

Reform Now (ACORN) v. Ridge, Civ. Action

Nos. 94-7671, 95-382 (E.D.Penn. Mar. 30, 1995) 11, 18

Commonwealth of Virginia v. United States, Civ.

Action No. 3:95CV357 (RLW) (E.D.Va. Oct. 18,

ROU oa ods tucccambpes wan anees Gareehre + aeeraees 11, 18

eT

vi

TABLE OF AUTHORITIES - Continued

Page(s)

Condon v. Reno, Civ. Action No. 3:95-192-O (Nov.

20, 1995 D.S.C.; amended Dec. 12, 1995) ....7, 11, 18

League of Women Voters of Kansas v. Graves, Case

No. 95-2350-KHV (D. Kan. Nov. 30, 1995)........ 11, 18

Statutes / CONSTITUTIONS

U.S. Const. Art I, § 2.....cceccevccreeeevesesseseces 21

U.S. Const. Art I, § 3.....ccccecccceeeeceresceeesens 21

U.S. Const. Art. I, § 4.0... cece cece eee eeeeenenes passim

U.S. Const. Art. I, § 8, Cl. 3... ..cccccceeeersceceeees 25

U.S. Const. Art. I, § 8, cl. 16... 66.666 cece eee erences 26

U.S. Const. Art. I, § 10, Cl. 2...... cece cece cece eenees 26

U.S. Const. Art. II, § 1, cl. 4.2... ccc cece eee cceeeeees 26

42 U.S.C. § 1973gg, et S€q.... 66. c eee c cece ee eeees passim

Enforcement Act of 1870, 16 Stat. 140, 16 Stat. 254....12

LEGISLATIVE History

H.R. Rep. No. 103-9, 103rd Cong., Ist Sess. (1993) . . passim

S. Rep. No. 103-6, 103rd Cong., 1st Sess. (1993) 1, 3, 4

Records of the Federal Convention, vol. 3 (Far-

POE ii cccccvenccdcctbecvvecverevecevededortavecs 22

OTHERS

Clearing the Road for ‘Motor Voter’, L.A. Times, Jan.

G, 1996, B0 Wib ci vie wccdecccavievcacestcessvvvnceees 6, 8

J. Story, Commentaries on the Constitution of the

United States, 280-292 (1st ed. 1883)............ 21, 22

vii

TABLE OF AUTHORITIES - Continued

Page(s)

Don't Kill Off ‘Motor Voter’, Buffalo News, Feb. 1,

ee Gide Che Vannh Wes debdeiiwdecdetdseubsadecesees 6

The Federalist No. 59, (Alexander Hamilton).......... 21

The Federalist No. 60, (Alexander Hamilton)....... 21, 22

B. Drummond Ayers, Jr., Law to Ease Voter Regis-

tration Has Added 5 Million to the Rolls, N.Y.

Se SOE, BD, TERS, BE. OB ncicevcccvccvvccccces: ~

The Middle Class that ‘Matters Most’, San Francisco

2, eM Me oo. oc ceweucbeccre

300,000 Motor Voters, San Francisco Chronicle,

RE Se eee we)

Frank Reeves & Peter J. Shelly, Motor-Voter Law

Helps GOP Most, Pittsburgh Post-Gazette, Nov.

its inde neeibebvaekherhns.ceyas et 9

The Motor Voter Act: Pleasant Surprises, Phoenix

Gazette, Sept. 9, 1995, at BB..... 6... cece eee eee ee 9

Maryland GOP Benefiting from ‘Motor Voter’ Law,

Baltimore Sun, June 15, 1995, at 1B................ 4

Human SERVE, The National Voter Registration Act,

January through September 1995 ..........6.665545. Me

Margaret L. Usdansky, States Stall on ‘Motor Voter’,

USA Today, Dec. 22, 1994, at 4A........ Fasebieenel

Beverly Sheldrake, Wilson Votes No, Fresno Bee,

it (ir Mh 64 ds bebe db uee dee abiseee wa baa ote

STATEMENT OF THE CASE

A. Background

Congress enacted the National Voter Registration Act

of 1993 (“NVRA”) in order to establish uniform non-

discriminatory voter registration “procedures that will

increase the number of eligible citizens who register to

vote in elections for Federal office.” 42 U.S.C.

§ 1973gg(b)(1). Consistent with Congress’ objectives, the

overwhelming majority of states have now implemented

this legislation with resounding success. Over five mil-

lion new voters, of diverse backgrounds and political

affiliations, have been added to the rolls.

Every judge from every court to consider the ques-

tion has concluded without difficulty that the NVRA is

constitutional. The State of California nevertheless per-

sists in its challenge, despite over a century of Supreme

Court precedent that squarely and consistently upholds

Congress’ broad authority to regulate federal elections.

Article I, Section 4 of the Constitution, while recognizing

that the States play a role in regulating federal elections,

explicitly empowers Congress “at any time” to “make or

alter such Regulations” as it deems appropriate. In an

unbroken string of decisions, dating back to Ex Parte

Siebold, 100 U.S. (10 Otto) 371, 392 (1879), this Court has

held that Article I, Section 4 vests in Congress “para-

mount” authority to regulate federal elections.

Expressly pursuant to this settled authority, Congress

enacted the NVRA. Declaring that “the purpose of our

election process is not to test the fortitude and determina-

tion of the voter, but to discern the will of the majority,”

Congress established uniform nondiscriminatory registra-

tion standards. See S. Rep. No. 103-6, 103rd Cong., 1st

Sess. 3 (1993). The NVRA provides that states requiring

advance registration to vote in federal elections must

provide for registration by (1) mail-in application, (2)

1

2

simultaneous application with driver’s license or state ID

card applications or renewals, and (3) application at dis-

ability and public assistance agencies. 42 U.S.C.

§§ 1973gg-2 to 1973gg-5. The NVRA also describes pro-

cedures and standards governing the maintenance of

voter registration rolls. 42 U.S.C. § 1973gg-6. Covered

states were generally required to comply with the NVRA

by January 1, 1995. 42 U.S.C. § 1973gg note.

Through the NVRA, Congress informs the states that

if they choose to mandate advance registration for federal

elections, which they are not required to do, they must

implement specified registration procedures. The NVRA

promotes the straightforward concept that voter registra-

tion is simply a matter of maintaining lists. Recognizing

that states already maintain lists at motor vehicle and

public assistance offices, the NVRA directs that those

agencies assist in the voter registration process.

B. Procedural History

Respondents agree generally with Petitioners’ state-

ment of “The Proceedings Below” set forth at pages 7-11

of the Petition. Respondents note that, with the exception

of South Carolina, those few other states listed by the

Petitioners as having challenged the constitutionality of

the NVRA have since abandoned their challenges.

C. Legislative History of the NVRA

The right to vote is a fundamental right under our

Constitution. Reynolds v. Sims, 377 U.S. 533, 555 (1964).

Through the NVRA, Congress sought to protect this fun-

damental right and to address the nationwide problem of

discriminatory and unfair voter registration procedures

for federal elections. 42 U.S.C. § 1973gg. The NVRA’s

legislative history and text both demonstrate a purpose to

re

3

make registration more accessible. Finding that voter reg-

istration is the single most important factor governing

voter turnout and that contemporary registration rates

are abysmally low, the Senate concluded:

[R]egistration procedures in the United States

are not uniform and [ ] discriminatory and

restrictive practices that deter potential voters

are employed by some states. . . . The Voting

Rights Act of 1965 made most of these restrictive

practices illegal, yet discriminatory and unfair

practices still exist and deprive some citizens of

the right to vote. This legislation will provide

uniform voter registration for Federal elections

and thereby further the procedural reform

intended by the Voting Rights Act.

S. Rep. No. 103-6, 103rd Cong., 1st Sess. 3 (1993).

The House echoed the Senate’s conclusion. Determin-

ing that existing local voter registration laws were, in

some instances, just as restrictive and discriminatory as

the unlawful practices prohibited by the Voting Rights

Act of 1965, the House Report stated that the NVRA was

needed to reduce “obstacles to voting to the absolute

minimum while maintaining the integrity of the electoral

process.” H.R. Rep. No. 103-9, 103rd Cong., 1st Sess. 3

(1993).

The findings and purposes set forth in the Act also

recognize the significant public interest in increasing

voter participation. Noting that discriminatory and unfair

registration laws have a “direct and damaging effect on

voter participation” in federal elections, the NVRA states

that its objectives are to increase the rate of voter registra-

tion, enhance voter participation in federal elections, and

“protect the integrity of the electoral process.” 42 U.S.C.

§ 1973gg(a) & (b).

D. Statement of Facts

The overwhelming majority of states have recognized

the laudatory purposes of the NVRA as well as Congress’

power to legislate in this area and, accordingly, have

faithfully implemented this legislation. But, as the district

court noted: “The State of California and Governor

Wilson [took] actions . . . tantamount to failure to comply

with the NVRA.” App. at 251.!

Recognizing that preparation for implementing the

NVRA would take considerable time, then-Acting Secre-

tary of State Tony Miller sent the Governor a letter on

January 31, 1994, warning that California was in danger

of not meeting the January 1, 1995, deadline because it

had yet to develop an implementation plan. See App. at

65-66. At about the same time, the California Department

of Motor Vehicles (“DMV”) cautioned the Governor that

the state was running out of adequate preparation time

for implementing the NVRA. See App. at 68-72.

Despite these advance warnings, the State failed to

develop a comprehensive plan for implementing the

NVRA. Nor did it seek any judicial resolution of the law’s

constitutionality. Instead, in August 1994, the Governor

issued an Executive Order directing state officials not to

comply with the NVRA except “to the extent federal

funding is made available.”2 App. at 57-58. Meanwhile, in

1 All appendix references are to the Appendix of Appellees

Voting Rights Coalition, et al., filed with the Ninth Circuit on

appeal from the district court’s order granting a permanent

injunction.

2 To facilitate state compliance with the NVRA, Congress

provided for federal agencies to partially reimburse states for

the costs of implementing the Act at public assistance agencies.

See H.R. Rep. No. 103-9, at 23-25; S. Rep. No. 103-6, at 39-41. The

U.S. Department of Health and Human Services and the U.S.

5

an attempt to comply with the NVRA, the California

legislature passed two related bills. App. at 74-75, 77-78.

The bills would have established, inter alia, procedures

for registering voters at DMV and other state agencies;

procedures for removing individuals from voter rolls in a

nondiscriminatory manner; and procedures for allowing

voters who have moved within the same congressional

district to vote without re-registering. The Governor vet-

oed both bills on September 30, 1994. See App. at 80-81.

Through his Veto Statements and Executive Order,

the Governor made clear that the State would not comply

with the NVRA unless it was fully federally funded. See

App. at 57-58, 80-81. The Court of Appeals, however,

concluded that the question of federal funding has no

relevance to the NVRA’s constitutionality. Voting Rights

Coalition v. Wilson, 60 F.3d 1411, 1415 (9th Cir. 1995).

Moreover, the evidence soundly refutes California’s

estimates of the NVRA’s costs and reveals that the State

has failed to consider altogether the substantial savings

that will result from the NVRA. Petitioners allege that the

cost of implementation will be $18 million and that

“Respondents did not present any admissible evidence to

contest this figure.” Pet. at 7. That statement is false.

Respondents introduced ample admissible evidence at

the district court controverting the State’s allegation,

including a statement from Petitioners’ then-Acting Sec-

retary of State who estimated the total costs at $5 million.

App. at 105. Petitioners’ cost projection, which has varied

Department of Agriculture have subsequently issued action

transmittals that allow states to receive reimbursements for reg-

istering voters under federally funded (AFDC, Food Stamps,

and Women, Infants and Children (WIC)) welfare programs. See

App. at 60-61, 63.

6

over time by as much as $32 million,’ is also grossly out

of proportion to the actual experience of states already

implementing the NVRA.* In any event, Petitioners nei-

ther sought nor received any finding to support their

inflated cost estimates.

In addition to overestimating the costs of the NVRA,

Petitioners completely overlook the significant savings

that its implementation will generate. As the experience

of other states demonstrates, the procedures prescribed

by the NVRA allow registration to be conducted much

more cheaply than would otherwise be possible.> The

3 See, e.g., Beverly Sheldrake, Wilson Votes No, Fresno Bee,

Dec. 31, 1994, at B4 (“Wilson says he’d be glad to comply if, in

the words of a press spokesman, ‘they send us $36 million.’ ”);

Don’t Kill Off ‘Motor Voter’, Buffalo News, Feb. 1, 1995, at 2

(Wilson estimates NVRA will cost California $50 million per

year); Clearing the Road for ‘Motor Voter’, L.A. Times, Jan. 8, 1995,

at M4 ($20 million); Margaret L. Usdansky, States Stall on “Motor

Voter’, USA Today, Dec. 22, 1994, at 4A ($35.8 million).

4 Some states have implemented the NVRA without mak-

ing any new appropriations, App. at 107-09 (Arizona, Maine,

New Mexico, Ohio, Texas), while others have made relatively

modest appropriations. For example, New York budgeted $2.5

million for the first year of implementing the NVRA; while

Florida appropriated $1.1 million; Georgia, $1.9 million; Massa-

chusetts, $6 million; and New Jersey, $3.5 million. Id. Start-up

costs, such as establishing new computer systems, constitute the

most significant outlay, while operating costs are significantly

less. App. at 111-12 (start-up and software formed Georgia’s

initial costs, operational costs in the future will be much less);

App. at 149 (of Kentucky’s $650,000-$700,000 of expenditures

for the NVRA, $575,000 was spent on reprogramming state’s

computer system); App. at 119-20 (costs of introduction form

bulk, continuing expenses minimal). Consequently, the cost of

complying with the NVRA should decrease over time.

5 There are several factors that contribute to these savings.

First, the cost per transaction under the NVRA’s registration

rs

7

failure to consider these savings exposes the State’s esti-

mates to the same criticism levelled at the State of South

Carolina by a district court. Condon v. Reno, Civ. Action

No. 3:95-192-O (Nov. 20, 1995 D.S.C.; amended Dec. 12,

1995). While recognizing that “cost is not the touchstone

in this constitutional confrontation,” the court found that

South Carolina’s “failure even to attempt to examine

possible offsetting savings - or even possible net savings

overall — seriously undermines [the state’s] claimed fiscal

concerns about the NVRA.” Id., amd. slip op. at 24. Peti-

tioners in this case likewise disregard any savings that

will derive from implementation of the NVRA.

E. implementation of the NVRA

By enacting the NVRA, Congress sought to serve the

public interest by eliminating barriers to voter registra-

tion and, at the same time, to protect the integrity of the

federal electoral process. 42 U.S.C. § 1973gg(b); H.R. Rep.

procedures is much less than the traditional methods. In Wash-

ington State, where the cost per transaction used to be

$2.00-$3.00, it is now $0.41 per transaction. App. at 107, 124. In

Minnesota, the cost per transaction is $0.33; in Montana it is

$0.25; and in the District of Columbia it is $0.18. App. at 107.

Second, because voter registration under the NVRA occurs

year-round and registers the vast majority of the eligible electo-

rate, states will be able to reduce, if not eliminate, the part-time

| workers they typically must hire to handle last-minute pre-

election registration. The CBO estimates that “local officials

nationwide could save about $10 million in a presidential elec-

| tion year and about $7 million in non-presidential election years

by reducing part-time hires.” H.R. Rep. No. 103-9, at 28-29.

Third, the U.S. Department of Health and Human Services and

U.S. Department of Agriculture will reimburse State NVRA

costs at the 50% federal match rate for AFDC, WIC, and Food

Stamps applicants. App. at 60-61, 63.

8

No. 103-9, at 3. The people of California possess a pro-

found interest in seeing these goals achieved. This State

has one of the lowest voter registration rates in the coun-

try.© Its record of minority voter participation is espe-

cially poor. See Cloward Decl. { 10 (filed in support of

Plaintiffs’ Motion for Preliminary Injunction, Jan. 27,

1995). Despite having one of the most diverse popula-

tions in the nation, California’s electorate remains rela-

tively homogenous.’

In enacting the NVRA, Congress specifically recog-

nized that the integrity and legitimacy of the democratic

process depend on the broad inclusion of as many eligi-

ble persons as possible. As noted by Professor Richard

Cloward, a voting expert at Columbia University, the

NVRA clearly furthers this interest:

Eight states and the District of Columbia had

their own motor voter programs in place at least

9 months before the 1992 federal election, well

before the NVRA was passed. The positive

impact on voter registration rates and voter

turnout in those jurisdictions was enormous.

Their aggregate registration increased at a rate

five times higher than in other states, and their

voter turnout increase was almost twice the

increase in other states.

Cloward Decl. { 8 (parentheticals omitted).

6 Voting and Registration in the Election of November 1992,

Current Population Reports, U.S. Bureau of the Census, Series

P-20; Clearing the Road for ‘Motor Voter’, L. A. Times, Jan. 8, 1995,

at M4; Cloward Decl. § 10; App. at 137-38.

7 California is only 54% white, but over 80% of the voters at

the November 8, 1994 general election were white. Ben Sher-

wood, The Middle Class That ‘Matters Most’, San Francisco

Chronicle, Dec. 30, 1994, at A23.

i il aac,

9

Most states are almost one year into their implemen-

tation of the NVRA and there can be little doubt of the

Act’s overwhelming success. Over five million citizens

have been brought into the democratic process. B. Drum-

mond Ayres, Jr., Law to Ease Voter Registration Has Added 5

Million to the Rolls, N.Y. Times, Sept. 3, 1995, § 1 at 1.8

While Petitioners protest that “[nJothing less is at stake

than state autonomy,” Pet. at 13, the more than forty

states that have implemented the NVRA have done so

with their sovereignty still intact. The most dramatic

consequence of the NVRA has been its success in register-

ing millions of new voters of varying backgrounds and

political affiliations.?

SUMMARY OF ARGUMENT

The Court’s discretionary review should not be

invoked as this case fails to present “an important ques-

| tion” that “has not been . . . settled by this Court.”

8 A more recent survey, based on data collected from state

election officials, estimates that eight million new voters have

been registered nationwide. Human SERVE, The National Voter

Registration Act, January through September 1995. In the first four

months since it was ordered to implement the Act, California

has seen 300,000 of its citizens registered through the NVRA.

300,000 Motor Voters, San Francisco Chronicle, Dec. 9, 1995, at

A21. Other states have also experienced unprecedented

increases in registration. Florida has averaged over 135,000 reg-

istrations per month; Texas 80,000 per month; Georgia 60,000

per month; North Carolina 40,000 per month; and Missouri

30,000 per month. Amicus Curiae Human SERVE’s Brief in Sup-

port of Plaintiffs-Appellees (filed with Ninth Circuit) at 3-4.

% See Frank Reeves & Peter J. Shelly, Motor-Voter Law Helps

GOP Most, Pittsburgh Post-Gazette, Nov. 5, 1995, at A15; The

| Motor Voter Act: Pleasant Surprises, Phoenix Gazette, Sept. 9,

1995, at B8; William F. Zorzi, Jr., Maryland GOP Benefiting from

‘Motor Voter’ Law, Baltimore Sun, June 15, 1995, at 1B.

10

Supreme Court Rule 10(c). In fact, the decision below is

supported by more than 100 years of precedent in this

Court affirming beyond doubt Congress’ authority over

federal elections, including the registration of voters.

Given this authority, there is simply no reasonable basis

for questioning the NVRA’s constitutionality.

Furthermore, no conflict exists among the courts of

appeals on the issue presented. Every judge from every

court to consider the question has concluded that the

NVRA fits comfortably within Congress’ constitutionally

delegated powers. The Seventh and Ninth Circuits, as

well as district courts in California, Illinois, Michigan,

Kansas, South Carolina, Pennsylvania, and Virginia, are

unanimous in concluding that Congress’ power to enact

the NVRA is authorized by the plain language of Article

I, Section 4. As Chief Judge Posner stated in Association of

Community Organizations for Reform Now (ACORN) v.

Edgar, 56 F.3d 791, 794 (7th Cir. 1995), “the Constitution

itself is clear enough to enable us to resolve the case.”

Finally, because the Constitution gives Congress “the

whip hand” with respect to the regulation of federal

elections, id., every court to consider the issue has easily

dismissed any Tenth Amendment concerns. As Judge

Sneed explained, in distinguishing the Tenth Amendment

question raised in New York v. United States, 505 U.S. 144

(1992): “The flaw in the State of California’s argument is

that it ignores Article I, section 4, which, unlike the

commerce power in Article I, section 8, empowers Con-

gress to impose on the states precisely the burden at

issue.” Voting Rights Coalition, 60 F.3d at 1415. Therefore,

the question whether Congress has imposed an

“unfunded mandate” on the States is not of constitutional

dimension. Id. Whatever the significance of this question

as a political matter, it is addressed to the wrong branch

of government and should not be decided by this Court.

cement

11

ARGUMENT

A. IN ENACTING THE NVRA, CONGRESS ACTED

SQUARELY WITHIN ITS POWER TO REGULATE

FEDERAL ELECTIONS UNDER ARTICLE I, SEC-

TION 4

1. Supreme Court precedent consistently upholds

Congress’ exercise of its supervisory power over

federal elections under Article I, Section 4

The NVRA scarcely marks the first time that Con-

gress has exercised its Article I, Section 4 authority to

“make or alter” regulations concerning federal elections

that impose burdens on the states. Nor did the rulings

upholding the NVRA’s censtitutionality by the Ninth and

Seventh Circuits, and the district courts in California,

Illinois, Michigan, Kansas, South Carolina, Virginia, and

Pennsylvania,!° break any new constitutional ground.

Indeed, this Court has repeatedly recognized for over a

century, and as recently as this past Term, that the over-

sight power created by Article I, Section 4 confers broad

and superior authority upon Congress to regulate the

States’ conduct of federal elections. See, e.g., U.S. Term

Limits, Inc. v. Thornton, 514 U.S. __, 115 S.Ct. 1842,

10 Wilson v. United States, 878 F. Supp. 1324 (N.D.Cal. 1995);

Association of Community Organizations for Reform Now (ACORN)

v. Edgar, 880 F. Supp. 1215 (N.D.IIl. 1995); Association of Commu-

nity Organizations for Reform Now (ACORN) v. Miller, Nos. 4:95-

CV-45, 1:95-CV-184, 1:95-CV-386 (W.D. Mich. Dec. 13, 1995);

League of Women Voters of Kansas v. Graves, Case No. 95-2350-

KHV (D. Kan. Nov. 30, 1995); Condon v. Reno, Civ. Action No.

3:95-192-0 (D.S.C. Nov. 21, 1995; amd. Dec. 12, 1995); Common-

wealth of Virginia v. United States, Civ. Action No. 3:95CV357

(RLW) (E.D.Va. Oct. 18, 1995); Association of Community Organi-

zations for Reform Now (ACORN) v. Ridge, Civ. Action Nos.

94-7671, 95-382 (E.D.Penn. Mar. 30, 1995).

ee

12

1868-69, 1873, 1898 (1995) (majority, concurring and dis-

senting opinions); Oregon v. Mitchell, 400 U.S. 112, 124

(1970) (“Congress has ultimate supervisory power over

congressional elections”); United States v. Classic, 313 U.S.

299, 315 (1941) (states are authorized to legislate “to the

extent that Congress has not restricted state action by the

exercise of its powers to regulate elections under § 4”); Ex

Parte Siebold, 100 U.S. (10 Otto) 371, 386 (1879) (“power of

Congress over the subject is supervisory and para-

mount”).

This question of Congress’ authority in this area is

simply not one about which there remains any serious

dispute. As the Siebold Court stated in affirming Con-

gress’ “paramount” authority over the regulation of fed-

eral elections: “The views we have expressed seem to us

to be founded on such plain and practical principles as

hardly to need any labored argument in their support.”

Id. at 393.

Although Congress has tended to leave the conduct

of federal elections to the states, it has on a number of

occasions specifically exercised its supervisory powers

pursuant to Article I, Section 4. In 1842, for example,

Congress passed several laws providing for the election

of Representatives by separate districts, fixing the time of

elections, and directing that elections be by ballot. Id. at

384. While these laws imposed duties on the States, Con-

gress made no provision for reimbursement of the costs

imposed. Congress again resorted to its Article I, Section

4 powers with the Enforcement Act of 1870, prescribing

extensive regulations for the election of Representatives,

including provisions for safeguarding voter registrations.

16 Stat. 140, 16 Stat. 254; Siebold, 100 U.S. at 399 (uphold-

ing constitutionality); see also Ex Parte Clarke, 100 U.S. (10

Otto) 399 (1879) (following Siebold).

13

In upholding the 1870 Act, the Siebold Court observed

that “we are bound to assume that Congress . . . has

endeavored to guard as far as possible against unnecess-

ary interference with State laws and regulations, with the

duties of State officers, or with local prejudices.” 100 U.S.

at 393. Since Siebold, this Court has consistently affirmed

the wide control available to Congress pursuant to its

Article I, Section 4 powers. See, e.g., United States v. Grad-

well, 243 U.S. 476, 485 (1917) (Congress may regulate

federal elections by “positive and clear statutes”); United

States v. Mosley, 238 U.S. 383 (1915) (upholding federal

statute originally part of 1870 act upheld in Siebold). In

United States v. Classic, 313 U.S. 299, 317 (1940), the Court

held that Section 4 authorized Congress to regulate pri-

mary elections whenever “they are a step in the exercise

by the people of their choice of representatives in Con-

gress.”

In Smiley v. Holm, 285 U.S. 355 (1932), this Court

considered the relationship between a Minnesota statute

establishing new congressional districts and a federal

statute prescribing conditions for congressional districts.

When Congress exercises its Section 4 power, the Smiley

Court stated, it “may supplement [ ] state regulations or

may substitute its own.” Id. at 366-367. Therefore, the

Court held that while both states and the federal govern-

' ment possess “broad authority” to regulate federal elec-

tions, any such regulation by Congress “overrul[es]”

similar state regulation. Id. at 367.

More recently, in Oregon v. Mitchell, this Court held

that Congress could properly exercise its Article I, Section

4 powers to compel the States to lower the minimum

voting age for federal elections from 21 to 18 and to

prohibit States from using durational residency require-

ments to disqualify voters for presidential and vice-presi-

dential elections. 400 U.S. 112, 117-18 (1970). Again, the

14

Court affirmed Congress’ power to regulate federal elec-

tions by imposing duties on the States, to be implemented

by state officers. At the same time, this Court also pre-

scribed the limitations of Congress’ Section 4 powers in

holding that Congress cannot regulate state and local

elections. Id. at 118.

When, only a few months ago, this Court reviewed

the allocation of authority between Congress and the

States as to the regulation of federal elections pursuant to

Article I, Section 4, it reached the same conclusion that it

always has. U.S. Term Limits, Inc. v. Thornton, 514 U.S. __,

115 S.Ct. 1842 (1995). Every member of this Court reas-

serted there that it is Congress, not the States, that has

the ultimate authority to “make or alter” all such regula-

tions. Id., 115 S.Ct. at 1857-58 (majority), 1873 (Kennedy,

J., concurring), 1883-84 (Thomas, J., dissenting). The

majority recognized once more that Article I, Section 4

gives Congress the last word on all matters relating to the

conduct of federal elections. Id. at 1869 (quoting Smiley v.

Holm, 285 U.S. at 366-67 (“[T]he Congress may supple-

ment these state regulations or may substitute its own”)).

As further explained by Justice Kennedy in his concur-

ring opinion:

The political identity of the entire people of the

Union is reinforced by the proposition which I

take to be beyond dispute, that, though limited

as to its objects, the National Government is and

must be controlled by the people without collat-

eral interference by the States.

Id. at 1873.

The dissenting opinion by Justice Thomas similarly

stressed that Article I, Section 4 “giv[es] Congress the

power to override state regulations of ‘[t]he Times, Places

and Manner of holding [congressional] Elections.’ ” Id. at

1898 (emphasis and first bracket added). According to

Justice Thomas, Article I, Section 4 “does not delegate

se

15

any authority to the States,” but “simply imposes a duty

upon them.” Id. at 1883. In explaining the reasons why

Congress was given authority over the States in this area,

Justice Thomas observed:

The Framers did trust Congress more than the

States when it came to preserving the Federal

Government’s own existence; to advance this

interest, they had to give Congress the capacity

to prescribe both the date and the mechanics of

congressional elections.

Id. at 1898.

In sum, Congress’ supervisory authority over the

States in the area of federal elections is set forth in the

Constitution and has been expressly reaffirmed each time

this Court has had occasion to comment upon it. See, ¢.g.,

Mitchell, 400 U.S. at 124-25 (“ultimate supervisory power”

and “final authority” over federal elections); Gradwell,

243 U.S. at 482 (extent of Section 4 power “has been

settled by repeated decisions of this court”); Smiley, 285

U.S. at 367 (“broad authority”); Siebold, 100 U.S. at 386

(Congress’ power “supervisory and paramount”). While

Congress traditionally has chosen to defer to the states,

see Gradwell, 243 U.S. at 485 (policy for great part of “our

constitutional life” to leave conduct of elections to state);

} Siebold, 100 U.S. at 388 (Congress “has been content to

leave them as prescribed by state laws”), its ability to

| exercise its Section 4 powers remains, without condition

| or qualification.

Section 4 states without qualification that the

state legislatures shall prescribe regulations for

the conduct of elections for Representatives and,

equally without qualification, that Congress

may make or alter such regulations. There is

nothing to indicate any limitation whatsoever

on this grant of plenary initial and supervisory

power.

16

Wesberry v. Sanders, 376 U.S. 1, 29-30 (1964) (Harlan, J.,

dissenting) (emphasis added).

2. The plain language of Article I, Section 4

expressly authorizes Congress’ enactment of the

NVRA.

The unbroken line of Supreme Court authority

reviewed above is firmly supported by the plain language

of Article I, Section 4:

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.

U.S. Const. Art. I, § 4.

Focusing closely on this text, the Court has stated

that Congress could certainly enact a “complete code” of

federal elections if it wanted to, including detailed provi-

sions for voter registration:

11 In many of the cases cited above, the Supreme Court held

that the breadth of Congress’ authority to regulate federal elec-

tions extended even to penal provisions designed to protect the

integrity of the federal electoral process. See, e.g., United States v.

Classic, 313 U.S. at 320 (two criminal code provisions were regu-

lations of “manner of holding elections”); United States v.

Mosley, 238 U.S. 383, 385-86 (1915) (upholding statute making it

an offense to “conspire to injure, oppress, threaten, or intimi-

date any citizen in the free exercise or enjoyment of any right or

privilege secured to him by the Constitution”); Ex Parte Yar-

brough, 110 U.S. 651, 654-55 (1883) (upholding constitutionality

of federal criminal statute banning use of force, intimidation or

threats to prevent eligible voter from supporting a candidate for

federal office); Siebold, 100 U.S. at 381-82 (listing criminal provi-

sions of Enforcement Act).

17

It cannot be doubted that these comprehensive

words embrace authority to provide a complete

code for congressional elections, not only as to

times and places, but in relation to notices, reg-

istration, supervision of voting, protection of

voters, prevention of fraud and corrupt prac-

tices, counting of votes, duties of inspectors and

canvassers, and making and publication of elec-

tion returns; in short, to enact the numerous

requirements as to procedure and safeguards

which experience shows are necessary in order

to enforce the fundamental right involved.

Smiley v. Holm, 285 U.S. at 366 (emphases added); see also

United States v. Gradwell, 243 U.S. at 483 (“process of the

elections of Congressmen [includes] the registration of

voters to the final certifying of the results, and . . . the

control thus established over such elections was compre-

hensive and complete”).

As Justice Black observed in Oregon v. Mitchell: “Any

doubt about the powers of Congress to regulate congres-

sional elections . . . should be dispelled by the opinion of

this Court in Smiley v. Holm.” 400 U.S. at 122. The specific

clause allowing Congress to “at any time by Law make or

alter such Regulations,” authorizes Congress to do any-

thing the state legislatures could do and grants Congress

“a general supervisory power over the whole subject.”

Smiley, 285 U.S. at 367 (quoting Siebold, 100 U.S. at 387);

see also Mitchell, 400 U.S. at 123 (“Constitution allotted to

the States the power to make laws regarding national

elections, but provided that if Congress became dissat-

isfied with the state laws, Congress could alter them”).

That Congress may not only “make” but may also “alter”

regulations underscores its power to impose duties on the

States. The system for conducting federal elections is to

be constructed, in the first instance, by the States. Yet the

Constitution’s text clearly contemplates congressional

18

modification of the States’ systems, hence control over

their officers.

On the single subject over which the Framers

intended to limit congressional authority — over the

“Place of chusing Senators” — they did so expressly. The

conspicuous absence of any other qualification leaves no

doubt as to Article I, Section 4’s broad scope. Any other

construction, such as that promoted by Petitioners, would

make nonsensical the plain meaning of the words “make”

and “alter.”

It should therefore come as no surprise that every

federal judge who has considered the issue of the NVRA’s

constitutionality — panels of the Seventh and Ninth Cir-

cuits, and district courts in California, Illinois, Michigan,

Kansas, South Carolina, Virginia, and Pennsylvania!? ~

has reached the same conclusion. Each has rejected out of

hand the precise claims offered here by Petitioners and

has upheld the NVRA.

The opinion by Chief Judge Posner for the Seventh

Circuit leaves no doubt that, under the plain language of

Article I, Section 4, Congress has the power to direct the

States to hold federal elections as it dictates:

12 The Seventh Circuit panel consisted of Judges Posner,

Easterbrook and Kanne, ACORN v. Edgar, 56 F.3d 791, and the

district judge in Illinois was Judge Shadur. 880 F. Supp. 1215.

The Ninth Circuit panel consisted of Judges Sneed, Kleinfeld

and Goodwin, Voting Rights Coalition v. Wilson, 60 F.3d 1411, and

the district judge in California was Judge Ware. 878 F. Supp.

1324. The district judge in Michigan was Judge Hillman,

ACORN v. Miller, Nos. 4:95-CV-45, 1:95-CV-184, 1:95-CV-386; in

Kansas, Judge Vratil, League of Women Voters v. Graves, Case No.

93-2350-KHV; in South Carolina, Judge Perry, Condon v. Reno,

Civ. Action No. 3:95-192-0; in Virginia, Judge Williams, Common-

wealth of Virginia v. United States, Civ. Action No. 3:95CV357

(RLW); and in Pennsylvania, Judge Buckwalter. ACORN v.

Ridge, Civ. Action Nos. 94-7671 & 95-382.

19

As emphasized in New York v. United States, on

which the State of Illinois relies so heavily, the

provisions of the Constitution that relate to the

states mostly tell them not what they must do

but what they can or cannot do. Article I section

4 (not discussed in New York v. United States) is

an exception. The first sentence tells the states

that they, not Congress, must regulate the times,

places, and manner of holding federal elections,

implicitly at their own expense. A state cannot

say to Congress, “We are not interested in elec-

tions for federal office. If you want to conduct

such elections in our state you must do so your-

self — establish your own system of registration,

hire your own registrars, find your own places

for voting.” The state is obligated to do these

things. U.S. Term Limits, Inc. v. Thornton, __ U.S.

__, __, 115 S.Ct. 1842, 1845-55, 131 L.Ed.2d 881

(1995). The power conferred as a corollary to the

imposition of this duty could be abused, so Arti-

cle I section 4 goes on to provide that Congress

can if it wants step in and either make its own

regulations or alter those adopted by the state

pursuant to the duty imposed by the first sen-

tence. Id. at ___, 115 S.Ct. at 1857-59. Even when

there is no abuse, as we have seen, Congress

can, as in the law fixing a uniform date for

federal elections, regulate federal elections and

force the state to bear the expense of the regula-

tion.

ACORN v. Edgar, 56 F.3d at 794 (emphasis in original).

Judge Posner also easily dispensed with the claim

that the NVRA lies outside the bounds of Article I, Sec-

tion 4 because it requires state officers to assist in voter

registration:

[T]he state itself concedes, as it must in light of

the holding of Ex parte Siebold, that . . . Congress

could have established a separate system of

20

voter registration for federal elections, manned

by federal officers, having all the burdensome

features of which Illinois complains. If Congress

had done that, however, the burden would fall

on the federal fisc alone. That is why the state is

happy to make the concession. But Article I

section 4 does not authorize Congress only to

establish a system of federal voter registration.

The first sentence, remember, requires the states

to create and operate such a system and the

second authorizes Congress to alter the state’s

system — but it is still the state’s system, manned

by state officers and hence paid for by the state.

Id. at 795. In view of the plain language of Article I,

Section 4, Judge Posner had no trouble concluding that

“the Constitution itself is clear enough to enable us to

resolve the case.” Id. at 793.

The Ninth Circuit’s opinion, written by Judge Sneed,

is in full accord with each of these points. Following the

Seventh Circuit, the Ninth Circuit soundly rejected the

argument that Congress had exceeded its authority in

enacting legislation designed to eliminate obstacles to

voter registration. Characterizing the power given to

Congress by Article I, Section 4 as “quite broad,” Judge

Sneed found that the NVRA “fits comfortably within its

grasp.” Voting Rights Cealition, 60 F.3d at 1413-14.

3. The legislative history of Article I, Section 4

permits regulations by both federal and state

governments, but makes any federal regulation

paramount

The legislative history of Article I, Section 4 provides

additional support for this Court’s consistent holdings

that Congress has been constitutionally afforded the final

say in the regulation of federal elections. In fact, Article I,

Section 4 was the subject of intense debate at the various

21

state ratifying conventions of 1787-1789. At that time,

elections within the meaning of Section 4 were “those

wherein Senators should be chosen by legislatures and

Representatives by voters possessing ‘the qualifications

requisite for electors of the most numerous branch of the

state legislature.’ ” Newberry v. United States, 256 U.S. at

249-50 (1920) (quoting U.S. Const. Art I, §§ 2, 3). Thus,

many states feared that granting Congress the power to

regulate the times, places, and manner of electing Con-

gressmen “might be extended to and embrace the regula-

tion of the election of the members of the state

legislatures who were to exercise the power to elect Sena-

tors.” Id. at 268.

On the other hand, proponents of the provision

believed that consigning the power to regulate federal

elections exclusively with the States would place the exis-

tence of the federal government entirely at the mercy of

the States. “They could at any moment annihilate it by

neglecting to provide for the choice of persons to admin-

ister its affairs.” The Federalist No. 59, at 363 (Alexander

Hamilton) (Clinton Rossiter, ed. 1961); see also The Federal-

ist No. 60, at 366 (Hamilton) (“an uncontrollable power

over the elections to the federal government could not,

without hazard, be committed to the State legislatures”).

In the end, granting Congress paramount power over

federal elections was considered indispensable, and those

favoring congressional authority over federal elections

prevailed. See J. Story, Commentaries on the Constitution of

the United States 280-292 (1st ed. 1833) (cited in Or-gon v.

Mitchell, 400 U.S. at 119 n.2). Alexander Hamilton

explained that Section 4’s “propriety rests upon the evi-

dence of this plain proposition, that every government

ought to contain in itself the means of its own preserva-

tion.” The Federalist No. 59, at 362 (emphasis in original).

2

22

As evident from his remarks at the Virginia Convention,

James Madison held the same view:

It was found impossible to fix the time,

place, and manner of election of representatives

in the constitution. It was found necessary to

leave the regulation of these, in the first place,

to the state governments as being best

acquainted with the situation of the people, sub-

ject to the control of the general government, in

order to enable it to produce uniformity and

prevent its own dissolution. . . . Were they

exclusively under the control of the state gov-

ernments, the general government might easily

be dissolved. . . . The power appears to me

satisfactory, and as unlikely to be abused as any

part of the Constitution.

Records of the Federal Convention, vol. 3, at 311 (Far-

rand) (quoted in Gradwell, 243 U.S. at 484) (emphasis

added).15

The fears of the provision’s opponents were dispelled

by restricting congressional authority to the times,

places, and manner of elections, and by not giving Con-

gress any authority to deal with the election of the state

legislatures, which was a power reserved to the states.

The Federalist No. 60, at 371 (Hamilton); Newberry, 256 U.S.

13 Delegates to the Massachusetts Convention also recog-

nized the inherent danger of granting exclusive control to the

states. For example, Mr. Cabot warned that “if the state legisla-

tures are suffered to regulate conclusively the elections of the

democratic branch, they may . . . finally annihilate that control

of the general government, which the people ought always to

have.” Story, Commentaries 26 (quoted in Oregon v. Mitchell, 400

US. 112, 119 n.2 (1970)). Similarly, Mr. Parsons stated that only

by giving the federal government “controlling power” over

federal elections could the people’s “equal and sacred rights of

election” be preserved. Id. at 27.

23

at 269 (White, J., dissenting). Thus, in order to safeguard

the continued existence of the federal government and to

effectuate uniformity throughout the nation as needed,

the Framers quite deliberately placed ultimate control

over federal elections in the hands of the federal govern-

ment. This Court has never permitted any other result.

B. IN VIEW OF THE UNBROKEN LINE OF CASES

ESTABLISHING CONGRESS’ AUTHORITY OVER

FEDERAL ELECTIONS, THIS CASE PRESENTS

NO SUBSTANTIAL TENTH AMENDMENT QUES-

TION

Petitioners also seek review to assert their claim that

the NVRA is unconstitutional under the Tenth Amend-

ment. But given that this Court has so clearly and fre-

quently construed Article I, Section 4 to accord Congress

paramount authority over the regulation of federal elec-

tions, there is nothing “reserved” to the states so as to

raise a Tenth Amendment question. Any other result

would constitute a radical departure from over a century

of settled Tenth Amendment jurisprudence, both as to

holdings and methodology of adjudication.

Application of the Tenth Amendment is to be deter-

mined by “inquir[ing] whether an Act of Congress is

authorized by one of the powers delegated to Congress in

Article I of the Constitution.” New York v. United States,

505 U.S. 144, 155 (1992) (citing Perez v. United States, 402

U.S. 146 (1971) and McCulloch v. Maryland, 17 U.S. (4

Wheat.) 316 (1819)). “If a power is delegated to Congress

in the Constitution, the Tenth Amendment expressly dis-

claims any reservation of that power to the States... . ”

New York v. United States, 505 U.S. at 156.

Because the NVR was enacted pursuant to a consti-

tutional provision that explicitly grants Congress the

24

power to regulate the states, it cannot offend the constitu-

tionally-mandated division of authority between the

states and the federal government. To assert otherwise, as

Petitioners necessarily have been compelled to argue to

this Court, would render Article I, Section 4 nugatory:

Congress, in fact, would not have the power at all to

“make or alter” the States’ regulations. Instead, State

executives and legislatures would command ultimate

authority to dictate how federal elections are conducted

and basic tenets of federalism would be flipped on their

head.

By their very role in our democratic scheme, federal

elections, the existence of which are dependent upon the

Constitution, could never have been within the

“reserved” powers of the States. The Tenth Amendment

simply provides that “powers not delegated to the United

States by the Constitution . . . are reserved to the States.”

Thus, this Court in Mitchell held that Congress could not

regulate state elections because the “Constitution

reserves to the States the power to set voter qualifications

in state and local elections.” Mitchell, 400 U.S. at 125. Yet,

as this Court recently observed, “No state can say, that it

has reserved, what it never possessed.” U.S. Term Limits,

Inc., 115 S.Ct. at 1854 (quoting Justice Story).

Because the ultimate authority to regulate federal

elections was “never possessed” by the states, the Tenth

Amendment is simply irrelevant here:

For the election of Senators and Representatives

in Congress is a Federal function; whatever the

states do in the matter they do under authority

derived from the Constitution of the United

States. The reservation contained in the 10th

Amendment cannot properly operate upon this

subject in favor of the state governments; they

25

could not reserve power over a matter that had

no previous existence.

Newberry, 256 U.S. at 281 (White, J., dissenting).

For these reasons, all of the lower courts examining

the NVRA have concluded that the holding of New York v.

United States has no relevance to the question of the

NVRA’s constitutionality. While under the Commerce

Clause, Congress may regulate private activity that affects

interstate commerce, its ability to regulate “States as

States” is very closely circumscribed. Garcia v. San Antonio

Met. Transit Auth., 469 U.S. 528, 554 (1985); EEOC v. Wyo-

ming, 460 U.S. 226, 237 (1983); Hodel v. Virginia Surface

Mining & Reclamation Ass'n, 452 U.S. 264, 287-88 (1981).

A simple comparison of the text of the Commerce

Clause with that of Article I, Section 4 easily illustrates

the substantively different ranges of authority conferred.

The Commerce Clause authorizes Congress “[t]o regulate

Commerce with foreign Nations, and among the several

States.” U.S. Const. Art. I, § 8, cl. 3. It is completely silent

on the issue of congressional regulation of States. In

contrast, Section 4 directly confronts the issue, stating

that: “[t]he Times, Places and Manner of holding Elec-

tions for Senators and Representatives, shall be pre-

scribed in each State by the Legislature thereof; but

the Congress may at any time by Law make or alter such

Regulations. .. . ” U.S. Const. Art. I, § 4, cl. 1 (emphases

added).14 This provision clearly and specifically

14 Rarely does our federalist system “require[ ] or give[ ]

room for conjoint action between the state and national sover-

eignties.” Siebold, 100 U.S. at 392. For the most part, the opera-

tions of the federal government are to be “conducted

separately” from those of the states. Id. With respect to those

“very few subjects,” id., other than Article I, Section 4, where the

Constitution contemplates joint action and gives Congress the

final say, it does so in explicit terms:

26

authorizes Congress to regulate the states in the adminis-

tration and conduct of federal elections. It leaves room

for state participation, but not for state domination. See,

e.g., Puerto Rico v. Branstad, 483 U.S. 219, 228 (1987) (dis-

cussing Fugitives clause: “Because the duty is directly

imposed upon the States by the Constitution itself, there

can be no need to weigh the performance of the federal

obligation against the powers reserved to the States

under the Tenth Amendment.”).

Petitioners’ attempt to rely on United States v. Lopez,

514 US. __, 131 L.Ed.2d 626 (1995), is likewise mis-

placed. Lopez, which holds that Congress exceeded its

authority under the Commerce Clause in enacting the

Gun-Free School Zones Act, crystallizes the fatal flaw in

the State’s argument. As stated in the Lopez passage

quoted in the Petition for Certiorari, “in areas such as

Article I, Section 8, clause 16: “To provide for

organizing, arming, and disciplining, the Mili-

tia, .. . reserving to the States respectively, the

Appointment of the Officers, and the Authority of

training the Militia according to the discipline pre-

scribed by Congress.”

Article I, Section 10, clause 2: “No State shall,

without the Consent of the Congress, lay any

Imposts or Duties on Imports or Exports, except what

may be absolutely necessary for executing its inspec-

tion Laws: and the net Produce of all Duties and

Imposts, laid by any State on Imports or Exports,

shall be for the Use of the Treasury of the United

States; and all such Laws shall be subject to the

Revision and Controul of the Congress.”

Article Il, Section 1, clause 4: “Congress may

determine the Time of chusing the [States’] Electors,

and the Day on which they shall give their Votes;

which Day shall be the same throughout the United

States.”

27

criminal law enforcement or education . . . States histori-

cally have been sovereign.” Id. at 641 (quoted in Pet. at

25). The regulation of federal elections is manifestly dif-

ferent. Indeed, if there is any area in which the States

historically have not beer sovereign, it is in the regula-

tion of federal elections. Over this subject, as Chief Judge

Posner stated in ACORN, “Congress was given the whip

hand.” 56 F.3d at 794. The Constitution confers upon

Congress not only the power to regulate federal elections,

but also the authority to “force the state to bear the

expense of the regulation.” Id.; see also Voting Rights Coali-

tion, 60 F.3d at 1415. Lopez’s emphasis on the states’

historical authority to regulate education thus magnifies

the defect in the State’s attempt to apply Commerce

Clause reasoning in the territory governed by Article I,

Section 4.

Although Petitioners attempt to make much of the

fact that the NVRA involves state officers whose tradi-

tional responsibilities are unrelated to elections, this fact

is of no constitutional import - particularly since the

officers involved already perform functions comparable

to those required by the NVRA. “In no matter should

[courts] pay more deference to the opinion of Congress

than in its choice of instrumentalities to perform a func-

tion that is within its power.” National Mutual Insurance

Co. v. Tidewater Transfer Co., 337 U.S. 582, 603 (1949)

(opinion of Jackson, J.). As Chief Justice Marshall stated

with regard to Congress’ power under the “necessary and

proper” clause: “Let the end be legitimate, let it be within

the scope of the constitution, and all means by which are

appropriate, which are plainly adapted to that end, which

are not prohibited, but consist with the letter and spirit of

constitution, are constitutional.” McCulloch v. Maryland,

17 U.S. (4 Wheat.) 316, 421 (1819).

Nor does the NVRA represent the first time that

Congress has imposed duties on state officers other than

election officials. Congress previously has exercised its

Section 4 powers in very specific terms, for example, to

tell state legislatures “to meet in joint convention, and

28

fixing the day when this should be done, and requiring

them so to meet on every day thereafter and vote for a

senator until one was elected.” Ex Parte Yarbrough, 110

U.S. 651, 661 (1884). The NVRA, which contemplates the

participation of state officers who already perform the

ministerial duty of compiling lists, imposes a much less

onerous burden on the States.

Petitioners’ effort to characterize the lack of full fed-

eral funding or reliance upon state officials to carry out

some of the requirements of the NVRA is equally insub-

stantial as a Tenth Amendment issue. There is, of course,

nothing new about the use of state resources and person-

nel to run federal elections. Voting Rights Coalition, 60 F.3d

at 1415 (exercise of Congress’ Section 4 power “intended

to be borne by the states without compensation” and no

authorities “have suggested, even remotely, the necessity

of the United States bearing the burden of any alteration

it imposed.”). Proper funding for any program is surely a

meaningful practical consideration in implementation.

But while the federal government does in fact assume-a

portion of the costs involved in implementing the NVRA,

and Petitioners’ assertions as to California’s costs and

burdens are much exaggerated, which entities should

bear the expenses of a program enacted pursuant to

congressional authority is a legislative policy decision,

not a matter of constitutional dimension for the courts.

See Garcia, 469 U.S. at 555 n.21 (presence or absence of

federal funding not a Tenth Amendment issue); Hodel, 452

US. at 292 n.33 (statute’s impact on state economy “4nsuf-

ficient to establish a violation of the Tenth Amend-

ment”).35

15 As explained in the Statement of Facts, supra, we thor-

oughly disagree with the State’s estimate of the burdens associ-

ated with the NVRA and with its arguments as to their

relevance. In any event, these subjects are inappropriate for

29

Accordingly, the Seventh Circuit found no merit

whatsoever in the state’s attempt to “grope[] for some

extratextual limitation on the power granted by Article I

section 4” by invoking the Tenth Amendment:

Illinois advances the related notion that to make

a state administer federal elections fatally com-

promises state sovereignty. That particular

“fatal compromise,” however, is built into the

Constitution, precisely in Article I section 4, the

first sentence of which places the burden of

administering federal elections on the states.

ACORN, 56 F.3d at 796. While Congress may, if it wishes,

reimburse the states for the costs of conducting federal

elections, there is no constitutional requirement that it do

SO.

Because the Constitution has already struck the

proper balance between federal and state interests in this

area, further balancing is unnecessary. When drafting the

Constitution, the Framers evaluated the merits of grant-

ing authority over federal elections exclusively to the

states or exclusively to the federal government. In the

end, they created a federalist system that conferred plen-

ary authority upon both, but gave Congress ultimate

supervisory power. It was “ ‘not a controversy between

equals.’ ” United States v. Manning, 215 F. Supp. 272, 277

(W.D. La. 1963) (quoting Justice Holmes). Thus, “(t}here is

no such conflict between them as to prevent their forming

resolution through a facial challenge. As both the Seventh Cir-

cuit and the Ninth Circuit expressly stated in their opinions,

implementation of the NVRA should be accomplished with an

“adequate sensitivity to the principle of federalism.” Voting

Rights Coalition, 60 F.3d at 1416; ACORN, 56 F.3d at 798. If the

implementation of the NVRA violates this principle, an as-

applied challenge would of course be the appropriate means by

which to raise such a claim. The burdens imposed on the state,

even if relevant, simply cannot be considered given the present

posture of this case.

30

a harmonious system perfectly capable of being adminis-

tered and carried out as such.” Siebold, 100 U.S. at 386. In

the face of such emphatic and unambiguous precedent,

there exist no suitable grounds for review by this Court.

CONCLUSION

Questions relating to the scope of congressional

power often implicate novel and important constitutional

issues that should be addressed. This case does not pre-

sent such an issue. This case involves a clear constitu-

tional mandate that has been consistently affirmed by this

Court. Time and time again, when asked to consider

Article I, Section 4, this Court has reiterated Congress’

“paramount” authority to regulate federal elections, a

power that includes the registration of voters. There is no

reason for this Court to say again what it already has said

clearly and forcefully. Accordingly, the Court should

deny the State’s Petition.

Dated: December 26, 1995

Respectfully submitted,

Rosert Rusin

Counsel of Record

Lawyers’ Committee for

Civil Rights of the

San Francisco Bay Area

301 Mission Street, Suite 400

San Francisco, CA 94105

(415) 543-9444

Mark D. RosENBAUM

ACLU of Southern California

1616 Beverly Blvd.

Los Angeles, CA 90026

(213) 977-9500