Amicus Curiae Brief — Wilson v. Voting Rights Coalition

ao —_ Court, U.S.

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DEC 21 1995

No. 95-673

Tn the a

Supreme Court of the United States

October Term, 1995

~~

PETE WILSON, Governor of California, ef al. ,

Petitioners,

v.

VOTING RIGHTS COALITION, et al,

Respondents.

a

4

PETE WILSON, Governor of California, ef ai. ,

Petitioners,

Vv.

JANET RENO, U.S. Attorney General, et al.,

Respondents.

sé

4

Petition for Writ of Certiorari to the United States Court of

Appeals for the Ninth Circuit

vv

AMICUS CURIAE BRIEF OF PACIFIC LEGAL FOUNDATION

AND THE STATES OF ARIZONA, IDAHO, NEW HAMPSHIRE,

AND SOUTH CAROLINA IN SUPPORT OF PETITIONERS

vw

ALAN G. LANCE *ANTHONY T. CASO

Idaho Attorney General *Counsel of Record

P.O. Box 83720 ANNE M. HAWKINS

Boise, ID 83720-0010 Of Counsel

Telephone: (208) 334-2400 Pacific Legal Foundation

2151 River Plaza Drive,

Suite 305

Sacramento, CA 95833

Telephone: (916) 641-8888

Attorneys for Amici Curiae

Additional Counsel Continued Inside Cover

GRANT WOODS

Arizona Attorney General

1275 West Washington

Phoenix, AZ 85007

CHARLES MOLONY CONDON JEFFREY R. HOWARD

Attorney General for the State Attorney General for the

of South Carolina State of New Hampshire

P.O. Box 11549 33 Capitol Street

Columbia, SC 29211 Concord, NH 03301

Telephone: (803) 734-3970 Telephone: (603) 271-3658

Attorneys for Amici Curiae

i

TABLE OF CONTENTS

TABLE OF AUTHORITIES CITED ..............4.. ii

INTEREST OF AMICUS CURIAE ........- see eees 1

STATEMENT OF THE CASE ......-.--eceeceeees 3

SUMMARY OF ARGUMENT .........----+++++:> 3

REASONS FOR GRANTING THE

PETITION FOR WRIT OF CERTIORARI ............ 5

I. THIS COURT SHOULD ESTABLISH

THAT CONGRESS LACKS THE POWER

TO REQUIRE STATE AGENCIES TO

CARRY OUT FEDERAL REGULATORY

oS er ee se eee ee 5

Il. THIS COURT SHOULD CLARIFY THE

SCOPE OF CONGRESS’ ARTICLE I,

SECTION 4, ELECTIONS POWER ............. 9

Il. THIS COURT SHOULD FURTHER DEFINE

THE DIVISION BETWEEN STATE AND

FEDERAL SOVEREIGNTY CLEARLY

EMBODIED IN THE TENTH AMENDMENT ..... 14

COD nee se dicoceveseebeceseceses 19

ii

TABLE OF AUTHORITIES CITED

Page

CASES

Addison v. Department of Motor Vehicles,

69 Cal. App. 34 406 (1977) 0. ccc ccc ccc cre ccceee 8

Association of Community Organizations for Reform

Now v. Edgar, 56 F.3d 791 (7th Cir. 1995) ......... 10

Garcia v. San Antonio Metropolitan Transit

Authority, 469 U.S. 528 (1985) ...........+.-.. 3,18-19

Gregory v. Ashcroft, 501 U.S. 452,

S15 L. Tb. BO GUE wivcc ccc cedsiivecseses 17

Hodel v. Virginia Surface Mining and

Reclamation Association, Inc.,

453 WB. FO Ce boon 0% 60a 6 wb 8 6 000 Ho ig es 08 2

Immigration and Naturalization Service v.

Chadha, 462 U.S. 919 (1983) .........-.-220- 13-14

Kugler v. Yocum, 69 Cal. 2d 371 (1968) ............. 8

Morris v. Williams, 67 Cal. 3d 733 (1967) ........... 7-8

New York v. United States, 505 U.S. 144,

jy Se & Fe ft. ee errr 11,15-16, 18-19

Smiley v. Holm, 285 U.S. 355 (1932) .........+.+-- 10,12

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

514U.S.__, 131 L. Ed. 2d 881 (1995) ......... 11-12

ET mes OO COOL:

Page

Voting Rights Coalition v. Wilson, 60 F.3d

og ge | Bere 10,13-15,17

STATUTES

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42 U.S.C. §§ 1973gg-1973gg-10 ...... 2... eee ee eee 5

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UNITED STATES CONSTITUTION |

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MISCELLANEOUS

The Federalist No. 59, at 299 (Alexander Hamilton)

Gh Wee Ges 266 rcatesotensses 5b sseeks ss 11

No. 95-673

In the

Supreme Court of the United States

October Term, 1995

~>

PETE WILSON, Governor of California, et al. ,

Petitioners,

v.

VOTING RIGHTS COALITION, ef ai.,

Respondents.

a

4

PETE WILSON, Governor of California, et al. ,

Petitioners,

v.

JANET RENO, U.S. Attorney General, et al.,

Respondents.

sa

4

Petition for Writ of Certiorari to the United States Court of

. Appeals for the Ninth Circuit

+

AMICUS CURIAE BRIEF OF PACIFIC LEGAL

FOUNDATION AND THE STATES OF ARIZONA, IDAHO,

NEW HAMPSHIRE, AND SOUTH CAROLINA

IN SUPPORT OF PETITIONERS

+

INTEREST OF AMICI CURIAE

Pacific Legal Foundation (PLF) is a nonprofit, tax-

exempt corporation organized under the laws of the State of

California for the purpose of litigating in the public interest.

PLF has nearly 25,000 supporters nationwide. Policy for

1

respect to the constitutional and legal issues presented.

Pursuant to Rule 37.2, written permission from ail parties for

PLF to file this brief has been lodged with the Clerk of te

Court.

Amici, the States of Arizona and Idaho are not involved

in litigation related to the National Voting Rights Act of

1993. However, as two of the 50 sovereign states, they have

a vital interest in having this Court resolve the significant

state and federal sovereignty issues raised by this appeal.

Amicus, the State of New Hampshire, is in a position

to be affected directly by the outcome of this litigation. New

Hampshire has been named a defendant in an action brought

by private litigants for its alleged noncompliance with the

National Voting Rights Act of 1993 despite its having

adopted an effective, less cumbersome and costly system of

election day registration. League of Women Voters of New

Hampshire v. Merrill, Civ. No. 95-232-M (D.N.H. filed

May 2, 1995). New Hampshire is defending this District

Court action on grounds which include that the National

ew gee Senge

3

Voting Rights Act violates the division between state and

federal sovereignty embodied in the Tenth Amendment to the

United States Constitution and that it exceeds Congress’

Article I, Section 4, elections power.

Amicus, the State of South Carolina, stands to be

affected directly by the outcome of this litigation. South

Carolina has challenged the constitutionality of the

National Voting Rights Act of 1993 in Condon v. Reno, Civ.

No. 3:95-1992-0 (D.S.C. filed Jan. 24, 1995). The District

Court recently ruled against South Carolina in that case, and

South Carolina has appealed to the Court of Appeals for the

Fourth Circuit, but it is unlikely that the Fourth Circuit will

rule before the present petition is decided upon.

&.

STATEMENT OF THE CASE

Amicus adopts herein petitioner’s Statement of the

Case.

—h..

SUMMARY OF ARGUMENT

The true “essence” of federalism is that the States

as States have legitimate interests which the

national government is bound to respect even

though its laws are supreme. If federalism so

conceived and so carefully cultivated is to remain

meaningful, this Court cannot abdicate its

constitutional responsibility to oversee the Federal

Government’s compliance with its duty to respect

the legitimate interests of the States.

Garcia v. San Antonio Metropolitan Transit Authority,

469 U.S. 528, 581 (1985) (O’Connor, J., dissenting)

(citation omitted; emphasis in original). This case squarely

presents the question of whether the federal government may,

————SESEeee——

4

consistent with federalism principles, conscript state officials

and order them to spend state funds in a manner different

from that directed by their sovereign state governments.

The Ninth Circuit upheld the National Voting Rights

Act of 1993 (NVRA) against a Tenth Amendment challenge

by Governor Wilson of California. The court found that

federalism principles do not prevent Congress from forcing

state agencies to engage in activities outside the scope of

state legislation. It further found that the Times, Places and

Manner power enumerated in Article I, Section 4, of the

Constitution gives Congress the power to interfere in the

internal administration of state government for the purpose

of regulating federal elections, and that Tenth Amendment

considerations relevant to Congress’ commerce powers do

not apply in the context of Congress’ election powers.

The brief opinion does not adequately address the

sovereignty considerations raised by Governor Wilson,

instead finding in Article I, Section 4, the equivalent of a

“plain statement" that the Framers intended the federal

government to interfere in state government where that

interference is related to federal elections. Such a cursory

analysis disserves the Constitution and the careful thought

and debate that crafted the balance of power between the

federal government and the states in that document.

Resolution of this issue by this Court is of vital interest

to the states. California is not alone among the states in its

legal challenge to NVRA. To date, amicus is aware that

Illinois, Michigan, Mississippi, New Hampshire,

Pennsylvania, South Carolina, and Virginia are currently or

have been involved in litigation related to provisions of

NVRA. At least four of these states have mounted facial

challenges to the act. This Court should reinforce the

principle that states are independent sovereigns, and that no

federal power, however supreme, can divest them of this |

attribute. |

5

.

REASONS FOR GRANTING THE

PETITION FOR WRIT OF CERTIORARI

I

THIS COURT SHOULD ESTABLISH THAT

CONGRESS LACKS THE POWER TO REQUIRE

STATE AGENCIES TO CARRY OUT

FEDERAL REGULATORY PROGRAMS

Voter registration in California is exceedingly simple.

One need only fill out a postcard attesting to one’s right to

vote (Cal. Elec. Code § 500). A fixed address is

unnecessary, and postcards are freely available to anyone

who requests one from the county registrar of voters (Section

507). Affixing postage to the preaddressed cards is

unnecessary (Section 510). | During election cycles,

Californians cannot go to a supermarket or shopping mall

without being accosted by privately paid individuals or

volunteers who see it as their duty to register every shopper.

Apparently dissatisfied that portions of the electorate have

neglected to exert this minimal amount of effort, Congress

concluded that voters should be registered despite their

passivity, and enacted the National Voting Rights Act of

1993 (42 U.S.C. §§ 1973gg to 1973gg-10).

NVRA requires that state motor vehicle licensing

agencies serve as voter registration agencies (42 U.S.C.

§ 1973gg-3). States are required to modify driver’s license

applications to serve the dual purpose of voter registration

(Section 1973gg-3(a)(1)). The voter registration portion of

the form may not duplicate information requested for the

driver’s application portion (Section 1973gg-3(c)(2)(A)), and

it may not require more information than that needed to

prevent duplicate registration or to assess the applicant’s

6

eligibility to vote (Section 1973gg-3(c)(2)(B)); further, the

form must list voter eligibility requirements, and a signed

attestation by the applicant that he or she meets such

requirements (Section 1973gg-3(c)(2)(C)). A change of

address for a driver’s license must also serve as a change of

address for voter registration (Section 1973gg-3(@)). The

registration application to the state election official within ten

days, or, in some cases, five days (Section 1973gg-3(e)).

programs

disabilities (Section 1973gg-5(a}(2)). States must also

designate additional state agencies of the state’s own

choosing to serve in this capacity and may also designate

federal and nongovernmental offices upon their agreement

(Section 1973gg-5(a)(3)). Not only must all of these

agencies have at their disposal mail-in registration forms,

(Section 1973gg-5(a)(6)(A)). All voter registration

applications must be transmitted to the state election official

within ten days, or, in some cases, five days.

delineated in the act (Section 1973gg-4(a)).

. ee.

7

State employees must keep voter registration records

confidential and not use such records for purposes other than

voter registration (Sections 1973gg-3(ch(2)(D) and 1973gg-

5(a)(6)(B)). States are given limited means by which they

can purge voter registration records (Section 1973gg-6(d)).

Naturally, NVRA makes it clear that this painstakingly

detailed voter registration process applies only to federal

elections, since Congress is admirably sensitive to the fact

that it may not prescribe procedures for state elections. This

presumes that, after going to the time, trouble, and expense

of complying with NVRA, states would deem it prudent to

prescribe a separate procedure for their own state elections.

All executive agencies in California, including the

motor vehicle licensing agency and the welfare agency, were

created by acts of the Legislature. The statutes creating

these agencies and defining their powers and duties appear in

the California codes. For example, in California, the motor

vehicle licensing agency is the Department of Motor Vehicles

(DMV), created by statute in 1959 (California Vehicle Code

§ 1500). Since DMV was created, the Legislature has

amended and adopted numerous provisions relating to the

functioning of that agency, but at no time has the California

State Legislature delegated to DMV the authority to register

voters.

California courts have faithfully adhered to the

principle that administrative agencies are creatures of the

Legislature that created them. The California Supreme

Court, in Morris v. Williams, clearly enunciated the

applicable rule:

[W]e here discharge our responsibility to

determine whether the Agency has acted in

obedience to the mandate of the Legislature or

has ignored or violated it. ... [Regulations] must

conform to the legislative will if we are to

preserve an orderly system of government.

Morris v. Williams, 67 Cal. 3d 733, 737 (1967). The

California courts’ adherence to the rules governing

administrative agencies are not mere pacans to administrative

form, but inhere in separation of powers principles: an

executive agency may only exercise those powers that the

legislative branch delegates to them. See, e.g., Kugler v.

Yocum, 69 Cal. 2d 371, 375-76 (1968). Incidentally,

the DMV. Addison v. Department of Motor Vehicles,

69 Cal. App. 3d 486, 493 (1977).

Given the framework which the California State

Legislature has erected over a period of many years to insure

that these agencies operate within the guidelines established

by the Legislature, it is clear that, had these agencies

themselves attempted to promulgate the rules set out under

Section 1973gg-3 of NVRA, the regulations would be held,

under California law, void and of no effect.

If NVRA is to be given full force and effect, its

practical effect is to act as “super"-enabling legislation, a

delegation of federal duties under federal law directly to state

executive agencies. Compliance with NVRA requires these

agencies to administer a federal program entirely alien to the

duties delegated to them by the state Legislature that created

them.

In addition, NVRA provides for civil and criminal

enforcement of its provisions (Sections 1973gg-9 and

1973gg-10). Under the civil right of action, both the United

States Attorney General and private parties “aggrieved by a

violation of this subchapter" “may bring a civil action in an

appropriate district court for declaratory or injunctive relief"

(Section 1973gg-9(a) and (b)({1) and (2)). This provision

anticipates that state agencies, such as DMV, may be hailed

9

into federal court for violations of NVRA, a forum to which

state agencies generally have never had to answer for their

actions in the absence of questions of constitutional stature.

The California Government Code, in fact, provides that

actions of DMV (as well as the Department of Social

Services and other agencies that may be called upon to meet

the dictates of NVRA (Cal. Gov’t Code § 11501)) are subject

to state administrative adjudicatory procedures. Not so under

not merely have to submit to federal legislative power, but

may be subjected to the entire panoply of federal power as

exercised through its executive and judicial branches.

This intrusion by the federal government into the inner

workings of state administrative bodies is unprecedented.

The impact caused by NVRA is not merely or even primarily

its drain on the state fisc. It is an imposition upon the

citizens of the State of California who will be forced to wait

in slower and longer lines at DMV, the welfare office, and

other state agencies, to obtain the services which their elected

state representatives have labored to provide. This Court

should resolve whether any Article I power of Congress

includes the power to force state executive agencies to take

actions that are outside the scope of the state legislation that

governs them and to expend for these federal purposes funds

appropriated by the state Legislature for other state purposes.

II

THIS COURT SHOULD CLARIFY THE

SCOPE OF CONGRESS’ ARTICLE I,

SECTION 4, ELECTIONS POWER

Article I, Section 4, of the United States Constitution

The Times, Places and Manner of holding

Elections for Senators and Representatives, shall

be prescribed in each State by the Legislature

——————————————————————

10

thereof; but the Congress may at any time by

Law make or alter such Regulations, except as to

the Places of chusing Senators.

This Court has interpreted Section 4 broadly, stating

that it grants Congress the “authority to provide a complete

code for congressional elections, not only as to times and

places, but in relation to notices, registration, supervision of

voters, prevention of fraud, [etc.]." Smiley v. Holm,

285 U.S. 355, 366 (1932) (emphasis added). The Ninth

Circuit in this case expands Congress’ election powers

further still, and in a manner that distinguishes it from

previous exercises upheld by this Court. Because “no

previous federal election laws are sufficiently analogous to

[NVRA] for decisions on their constitutionality to dictate

the outcome of the present case," Association of Community

Organizations for Reform Now v. Edgar, 56 F.3d 791, 793

(7th Cir. 1995), this Court should determine whether Article

I, Section 4’s Times, Places and Manner clause gives

Congress the power to enact NVRA.

Noting that the Times, Places and Manner power

initially belongs to the states, the Ninth Circuit interprets the

congressional override provision in Section 4 as giving

Congress the power to interfere in the state’s allocation of its

agencies’ responsibilities. It holds that the power to "make

or alter such Regulations” is a grant to Congress not merely

to prescribe its own election laws should it choose to occupy

the field, but rather to invade the state’s sovereign right to

establish agencies and their governmental responsibilities as

long as the invasion arose from the Congress’ elections

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

1415 (9th Cir. 1995). However superficially appealing such

a textual argument is, it simply does not comport with the

structure of the Constitution itself. Despite the Ninth

Circuit’s acknowledgment that the Tenth Amendment defines )

limitations on Congress’ power in accord with this Court’s |

eee ennenetes

11

opinion in New York v. United States, 505 U.S. 144, 120 L.

Ed. 2d 120 (1992) (Voting Rights, 60 F.3d at 1415), the

Ninth Circuit finds in Article I, Section 4, a broader grant of

power to Congress than Congress’ ny power over

interstate commerce--in a provision that, by its very

language, is primarily a grant of power to the states.

After all, Article I, Section 4, grants the power to

regulate federal elections to the states in the first instance.

The federal government’s right to “make or alter” such

regulations was designed as a last resort to protect the federal

government from state interference with federal elections, not

allow the federal government to interfere with the states.

Before ratification of the Constitution, the provision of

Section 4 allowing Congress to make and alter election

regulations was opposed as giving the national government

too much power. Hamilton, however, countered with the

argument 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." The Federalist No. 59, at 300.

Hamilton understood the interests of the states and the

national government as being frequently at odds, not in

concert. While acknowledging that the possibility was slight

that the states would bring about the dissolution of the union,

Hamilton defended the congressional override provision as

insuring the continued viability of the union, to be used by

the national authority “whenever extraordinary circumstances

might render that interposition necessary to its safety.” Id.

The constitutional argument centered not around whether the

states should have the power to regulate elections, but on

whether the national government should be given any power

necessary as a check on any tendency of a state government

to use its Times, Places and Manner power to the detriment

of the union. Id. at 301. See also U.S. Term Limits, Inc. v.

12

Thornton, 514 U.S. ___, 131 L. Ed. 2d 881, 903-04 (1995).

Hamilton framed the issue thus:

And as it is more consonant to the rules of a just

theory to intrust the Union with the care of its

own existence, than to transfer that care to any

other hands; if abuses of power are to be

hazarded, on the one side, or on the other, it is

more rational to hazard them where the power

would naturally be placed, than where it would

unnaturally be placed.

Id. at 300.

Significantly, Smiley, on which the Ninth Circuit relied

for its expansive interpretation of Congress’ Article I,

Section 4, powers, noted the way in which the Times, Places

and Manner power could be implemented by Congress:

The phrase “such regulations" plainly refers to

regulations of the same general character that the

legislature of the State is authorized to prescribe

with respect to congressional elections. In

exercising this power, Congress may supplement

these State regulations or may substitute its own.

Smiley, 285 U.S. at 366-67 (emphasis added). However

broadly the Court interpreted the elections power in Smiley,

there is no indication that it understood them to allow |

Congress the power to simply invade the internal workings :

of state government in any manner whatsoever to regulate

federal elections.

It is not insignificant that the final decision reached by

the Framers was to grant the Times, Places and Manner

power to the states, in the first instance, and to the national

government as a last resort. While the Ninth Circuit stated,

consistent with opinions of this Court, that the purpose for

Congress’ exercising its election powers need not serve the

ve ? r j

13

narrow purpose conceived of by Hamilton--to insure its own

preservation (Voting Rights, 60 F.3d at 1414), that does not

render the Framers’ intentions completely devoid of

relevance in reviewing Congress’ exercise of its “make and

alter” power. The Framers set up a federal system vesting

limited power, via the Constitution, to the national

government, on the one hand, and reserving all other power

to the states or the people of the states on the other. After

further memorializing this structure in the Tenth

Amendment, it is incomprehensible how the Ninth Circuit

finds, in the wording of Article I, Section 4’s Times, Places

and Manner clause, an intent by the Framers to provide to

Congress the key which would unlock the door to state

sovereignty.

However convenient or natural it seems that an

Organization such as DMV, or other state agencies which

gather and process records of state residents, be utilized for

the dual purpose of voter registration, the fact remains that

the challenge here lodged by Governor Wilson would be

identical had NVRA designated the state highway patrol as

the body with which to carry out its mandates. This Court

has been appropriately sensitive to the structure of the

Constitution, no less than to its substance:

[T]he fact that a given law or procedure is

efficient, convenient, and useful in facilitating

functions of government, standing alone, will not

save it if it is contrary to the Constitution.

Convenience and efficiency are not the primary

objectives—or the hallmarks-of democratic

government ...

... [PJolicy arguments supporting even useful

“political inventions” are subject to the demands

of the Constitution which defines powers and,

4

with respect to this subject, sets out just how

those powers are to be exercised.

Il

THIS COURT SHOULD FURTHER DEFINE

THE DIVISION BETWEEN STATE AND

FEDERAL SOVEREIGNTY CLEARLY

EMBODIED IN THE TENTH AMENDMENT

The Tenth Amendment to the United States Constitution

provides:

The powers not delegated to the United States

by the Constitution, nor prohibited by it to the

States, are reserved to the States respectively, or

to the people.

In upholding NVRA, the Ninth Circuit held that the

Tenth Amendment did not bar Congress from “conscript{ing]

state agencies to carry out voter registration for the election

of Representatives and Senators." Voting Rights, 60 F.3d

at 1415. The court dismissed Governor Wilson’s Tenth

Amendment challenge, based on New York, determining that

Congress’ Article I, Section 4, powers were

distinct from Congress’ commerce power. Voting Rights,

60 F.3d at 1415.

15

Further, it held that the Tenth Amendment had no

applicability with respect to federal regulation of federal

elections, however much it intruded into state sovereignty:

Even though the Act by its terms does not control

the practices of voter registration for elections of

state and local officials, its impact on such

elections probably will be significant.

It is at this juncture that the sovereignty of

the State of California under the Tenth

Amendment becomes a constitutional concern.

Id. (emphasis added). In so holding, the Ninth Circuit

construed a limitation upon the Tenth Amendment

inconsistent with previous holdings of this Court.

Three years ago, this Court, in New York, held

unconstitutional the “take title” provision of the Low-Level

Radioactive Waste Policy Amendments Act of 1985 as

violating the Tenth Amendment to the United States

Constitution. New York, 505 U.S. at 150. In that case, as

in this, the petitioners did not argue that Congress lacked the

power to regulate; rather, they “contend[ed] only that the

Tenth Amendment limits the power of Congress to regulate

in the way it has chosen." Id. at 140.

The court below misconstrued the import of New York,

holding that the limitation iterated there, regarding Congress’

commerce powers, did not apply with respect to Congress’

Times, Places and Manner power. Voting Rights, 60 F.3d

at 1415. But the holding in New York relied not so much

upon an examination of Congress’ commerce powers, or

even the Tenth Amendment, but on federalism as a

fundamental principle upon which the United States was

constituted: 7

Much of the Constitution is concerned with

setting forth the form of our government, and the

solution to the crisis of the day.

New York, 505 U.S. at 158. Contrary to the Ninth Circuit's

understanding, New York specifically noted that Congress’

Article I powers were limited in the nature of their exercise

regardless of the particular grant of power under which

Congress was legislating: "We have always understood that

even where Congress has the authority under the Constitution

to pass laws requiring or prohibiting certain acts, it lacks the

power directly to compel the States to require or prohibit

those acts." Id. ati44. Specifically, this Court enunciated

the following principle:

[NJo Member of the Court has ever suggested

that [a strong] federal interest would enable

Congress to command a state government to

gives Congress the authority to regulate matters

directly and to pre-empt contrary state regulation.

Where a federal interest is sufficiently strong to

cause Congress to legislate, it must do so

directly; it may not conscript state governments

as its agents.

Id. at 151-52. These principles apply equally as well to

petitioners’ case. Indeed, because New York held that

federalism concerns were not an incident of any particular

grant of power under the Constitution, but inhered in the

the promise of liberty.” Gregory v. Ashcroft, 501 U.S. 452,

115 L. Ed. 2d 410, 423 (1991).

The Ninth Circuit’s interpretation of the Tenth

Amendment displays other flaws which ought to be addressed

We foresee the possibility in which the district

court will be asked to determine whether a

certain implementation of the statute sought by

the United States ... is properly resisted by the

state on substantial grounds related to its

sovereignty. Should such occasions arise, we

would expect the district court to respond with an

informed understanding of the duality of

sovereignty imbedded within the Constitution of

the United States.

Voting Rights, 60 F.3d at 1416 (emphasis added). The

concession displays an underlying mistaken premise that

sovereignty relies not on the distinction between the powers

exercisable by the federal or the state government, but on the

degree to which one power may intrude upon another. In

adopting this approach, the Ninth Circuit intimates that

sovereignty considerations amount to nothing more than the

quantity of state funds being used to implement the federal

a

18

scheme. The Framers could hardly have intended that such

a vital concept as federalism would be reduced to an

accounting function. Justice Powell, dissenting from the

holding in Garcia, was wary that such notions could

ultimately compromise federalism principles:

[T]he harm to the States that results from federal

overreaching under the Commerce Clause is not

simply a matter of dollars and cents. ... Rather,

by usurping functions traditionally performed by

the States, federal overreaching under the

Commerce Clause undermines the constitutionally

mandated balance of power between the States

and the Federal Government, a balance designed

to protect our fundamental liberties.

Garcia, 469 U.S. at 572 (Powell, J., dissenting). Although

Garcia spoke to whether federal funding of a local municipal

transit system made it subject to federal regulation, Powell’s

observations are no less apropos to the present case:

"Regardless of the willingness of the Federal Government to

provide federal aid, the constitutional question remains the

same: whether the federal statute violates the sovereign

powers reserved to the States by the Tenth Amendment." Id.

at 566 n.10 (Powell, J., dissenting).

The Ninth Circuit ignores the premise, clearly

enunciated in New York, that is the essence of the Tenth

Amendment: States retain their sovereignty despite the

powers granted to the national government and despite the

supreme stature of Congress’ laws. By forcing state agencies

to carry out federal prescriptions as to what constitutes good

election policy, Congress has ignored the fundamental

structure of our republic. Having once admonished Congress

not to “cross{] the line distinguishing encouragement from

coercion,” New York, 505 U.S. at 149, this Court should not

hesitate to “assume its constitutional responsibility” “to

19

reconcile [federalism] concerns in the final instance."

Garcia, 469 U.S. at 589 (O’Connor, J., dissenting).

r’

CONCLUSION

In New York v. United States, this Court stated,

unequivocally, that

[s]tates are not mere political subdivisions of the

‘United States. State governments are neither

regional offices nor administrative agencies of the

Federal Government. The positions occupied by

state officials appear nowhere on the Federal

Government’s most detailed organizational chart.

The Constitution instead “leaves to the several

states a residuary and inviolable sovereignty."

New York, 505 U.S. at 158 (citation omitted).

Despite this precedent, the lower court upheld NVRA,

which requires state agencies to carry out voter registration

activities for federal elections. This case raises federalism

concerns in a context as yet unaddressed by this Court.

The Ninth Circuit determined that Article I, Section 4,

empowers Congress to “conscript state agencies to carry out

voter registration for the election of Representatives and

Senators" (Voting Rights, 60 F.3d at 1415) and rejected the

argument based on New York that the Tenth Amendment bars

the means Congress has chosen to implement its policies. Id.

To the Ninth Circuit, the power granted to Congress under

Section 4 to “make and alter [election] Regulations” is

broader than Congress’ Commerce power under Section 8.

To clarify the scope of Congress” Article I, Section 4,

power and define the protections afforded to state sovereignty

20

under the Tenth Amendment, this Court should grant the

petition for writ of certiorari.

DATED: December, 1995.

Respectfully submitted,

ALAN G. LANCE * ANTHONY T. Caso

Idaho Attorney General *Counsel of Record

P.O. Box 83720 ANNE M. HAWKINS

Boise, ID 83720-0010 Of Counsel

Telephone: (208) 334-2400 Pacific Legal Foundation

2151 River Plaza Drive,

CHARLES MOLONY CONDON Suite 305

Attorney General for the Sacramento, CA 95833 —

State of South Carolina Telephone: (916) 641-8888

P.O. Box 11549

Columbia, SC 29211 JEFFREY R. HOWARD

Telephone: (803) 734-3970 Attorney General for the

State of New Hampshire

GRANT Woops 33 Capitol Street

Arizona Attorney General Concord, NH 03301

1275 West Washington Telephone: (603) 271-3658

Phoenix, AZ 85007

Attorneys for Amici Curiae

i

No. 95-673

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1995

PETE WILSON, GOVERNOR OF CALIFORNIA,

ET AL., PETITIONERS

Vv.

VOTING RIGHTS COALITION, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF FOR THE FEDERAL RESPONDENTS IN OPPOSITION

DREW S. DAYS, III

Solicitor General

DEVAL L. PATRICK

Assistant Attorney General

STEVEN H. ROSENBAUM

SAMUEL R. BAGENSTOS

Attorneys

Department of Justice

Wa i — 30

QUESTIONS PRESENTED

1. Whether the National Voter Registration Act of 1993

(NVRA), 42 U.S.C. 197399 et seg., is a constitutional exercise of

Congress’s power under the Elections Clause, U.S. Const. Art. I, §

4, to regulate the manner in which States administer elections for

~ : ATUr - , : — } , Q

2 Whether the NVRA is a constitutional exercise of

Congress’s power to enforce the Fourteenth and Fifteenth

Amenaments.

El

IN THE SUPREME COURT OF THE UNITED STATES

| OCTOBER TERM, 1995

No. 95-673

PETE WILSON, GOVERNOR OF CALIFORNIA,

ET AL., PETITIONERS

Vv.

VOTING RIGHTS COALITION, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF FOR THE FEDERAL RESPONDENTS IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 1-12) is

reported at 60 F.3d 1411. The opinion of the district court (Pet.

App. 13-25) is reported at 878 F. Supp. 1324.

JURISDICTION

The judgment of the court of appeals was entered on July 24,

1995. The petition for a writ of certiorari was filed on October

23, 1995 (a Monday). The jurisdiction of this Court is invoked

under 28 U.S.C. 1254(1).

STATEMENT

a. This case involves the State of California’s federal

constitutional challenge to the National Voter Registration Act of

2

1993 (NVRA or Act), 42 U.S.C. 1973gg et seq. (Supp. V 1993). The

Act is designed to "increase the number of eligible citizens who

register to vote in elections for Federal office." 42 U.S.C.

1973gg(b) (1) (Supp. V 1993). To that end, it establishes uniform,

nationwide procedures for registering to vote in federal elections.

The Act requires States to accept voter registration applica-

tions "made simultaneously with an application for a motor vehicle

driver’s license," 42 U.S.C. 1973gg-2(a) (1) (Supp. V 1993), as well

as with applications submitted at the offices of other state

agencies, 42 U.S.C. 1973gg-2(a)(3) (Supp. V 1993). The latter

agencies must include state public-assistance offices, "all offices

in the State that provide State-funded programs primarily engaged

in providing services to persons with disabilities," and other

agencies designated by the State. 42 U.S.C. 1973gg-5(a) (Supp. V

1993). The Act also requires state election officials to accept

voter registration applications submitted by mail. 42 U.S.C.

1973gg-4 (Supp. V 1993).

The Act also contains provisions to ensure the effective

operation of the registration methods just described. It requires

the employees of state motor vehicles offices to "include a voter

registration application form for elections for Federal office as

part of" every driver’s license application. 42 U.S.C. 1973gg-

3(c) (1) (Supp. V 1993). That voter registration form must inform

applicants of the state’s voter eligibility requirements and the

penalties for submitting a false application; it may not require

any information that duplicates information already required on the

3

driver’s license application. 42 U.S.C. 1973gg-3(c) (2) (A) and (D)

(Supp. V 1993). When applicants return their completed forms, the

motor vehicles employees must forward the voter registration

portion of the application to the "appropriate State election

official" for processing. 42 U.S.C. 1973gg-3(e) (Supp. V 1993).

Employees in the other designated state agencies must also include

a federal voter registration form along with every application for

the agency’s benefits or services, and must forward completed

applications to "the appropriate State election official" for

processing. 42 U.S.C. 1973gg-5(a) (6) and (d) (Supp. 1993). In all

instances, the relevant state election official determines whether

the applicant is eligible to vote and makes the ultimate decision

whether to place the registrant on the voting rolls. See H.R. Rep.

No. 9, 103d Cong., 1st Sess. 8 (1993).

The NVRA contains several provisions protecting the integrity

of the voting rolls in federal elections. It requires that voter

registration forms set forth each eligibility requirement of state

law and require the applicant to attest, under penalty of perjury,

that he or she meets each requirement. 42 U.S.C. 1973gg-

3(c) (2) (C), 1973gg-7(b) (2) (Supp. V 1993). It also requires States

to "conduct a general program that makes a reasonable effort to

remove the names of ineligible voters from the official lists of

eligible voters" because of the death of the registrant or a change

in the registrant’s residence. 42 U.S.C. 1973gg-6(a) (4) (Supp. V

1993). In addition, it allows States to conduct a program for

removing otherwise ineligible voters from the rolls. 42 U.S.C.

4

1973gg-6(b) and (c) (2) (A) (Supp. V 1993). Any program to protect

the integrity of voter registration rolls, however, must be

“uniform, nondiscriminatory, and in compliance with the Voting

Rights Act of 1965," 42 U.S.C. 1973gg-6(b) (1) (Supp. V 1993), and

may not purge voters from the rolls "by reason of the person’s

failure to vote," 42 U.S.C. 1973gg-6(b) (2) (Supp. V 1993). Finally,

the Act makes fraudulent registration a federal crime. 42 U.S.C.

1973gg-10(2) (Supp. V 1993).

2. The Act became effective in California on January 1, 1995.

See 42 U.S.C. 1973gg note (Supp. V 1993). On August 12, 1994, the

Governor of California "order[ed] California state agencies to

comply with the NVRA only ‘to the extent [that] federal funding is

made available for such purposes.’" Pet. App. 14. Because no non-

matching federal funding is provided to implement the Act, the

Governor’s order required total noncompliance. Id. at 3.’ On

December 14, 1994, private plaintiffs filed one of the present

actions in the United States District Court for the Northern

District of California, seeking declaratory and injunctive relief

requiring the State to comply with the Act. Ibid.; see 42 U.S.C.

1973gg-9. Shortly thereafter, the State sued the United States in

’ The United States Departments of Agriculture and Health

and Human Services have provided matching funds for the States’

costs of implementing the NVRA with respect to applicants for

benefits under the AFDC, WIC, and food stamps programs. See H.R.

Rep. No. 9, supra, at 11 (expressing intent that such matching

funds be provided). In addition, the NVRA provides for reduced

postal rates for mailings required by the Act. See 39 U.S.C. 3629

(Supp. V 1993); see also 42 U.S.C. 1973gg-6 note (Supp. V 1993).

In the absence of state expenditures, however, the Act does not

provide for federal funding of the NVRA’s implementation.

Ss

the same court, seeking a declaration that the Act violates the

federal Constitution and an injunction barring its enforcement.

Pet. App. 15. The United States filed a counterclaim in the

State’s action, seeking an injunction to require the State to

comply with the Act. Ibid. After the two actions were consolidat-

ed, the parties moved for preliminary injunctions. Ibid. The

district court consolidated the preliminary injunction hearing with

a trial on the merits of the constitutional issues. Ibid.; see

Fed. R. Civ. P. 65(a) (2).

After trial, the district court issued a written decision

rejecting the State’s constitutional challenges to the Act. Pet.

App. 13-25. The court held that the NVRA is a valid exercise of

Congress’s power under the Elections Clause, U.S. Const. Art. I, §

4, to regulate the "Times, Places and Manner of holding" elections

for federal office. Pet. App. 16-19. The court also held that the

Act does not violate the Tenth Amendment since, when acting under

the Elections Clause, Congress "may directly regulate the state’s

manner and means of voter registration without invading an area re-

served to the states." Id. at 18. The court permanently enjoined

the State from failing to comply with the Act and ordered it to

come forward with "a proposed plan for implementing the NVRA." Id.

at 21.

3. The court of appeals affirmed. Pet. App. 1-12. Relying

in part on the Seventh Circuit’s decision upholding the Act in

Association of Community Organizations for Reform Now (ACORN) v.

Edgar, 56 F.3d 791 (1995), the court determined that Congress’s

6

power over the "Times, Places and Manner of holding" elections for

federal office includes the power to regulate voter registration

procedures. Pet. App. 5. Based on that determination, the court

held that "the Act * * *, on its face, fits comfortably within"

Congress's power under the Elections Clause. Id. at 7.

The court of appeals rejected the State’s argument that the

NVRA violates the Tenth Amendment principles articulated in New

York v. United States, 505 U.S. 144 (1992). The court observed

that New York held that "Congress could not impose on the states

the burden of exercising its power under the Constitution to

regulate interstate commerce." Pet. App. 8. The court determined

that the State’s reliance on New York was "flaw[ed)]," because,

"unlike the commerce power in Article I, section 8," the Elections

Clause "empowers Congress to impose on the states precisely the

burden at issue." Pet. App. 8.

The court of appeals emphasized that its decision concerned

"an as yet unapplied statute." Pet. App. 4. The court assumed

that "interpretive or constitutional issues that might arise in the

implementation of the Act do not impair our analysis of the Act’s

facial constitutionality." Ibid. As had the Seventh Circuit in

ACORN, the court directed the district court "to approach its task

of implementation with an ‘adequate sensitivity to the principle of

federalism.’" Pet. App. 12 (quoting ACORN, 56 F.3d at 798). The

panel retained jurisdiction to consider any subsequent appeals.

Pet. App. 12.

~

ARGUMENT

The court of appeals correctly held that the NVRA is a valid

exercise of Congress’s power under the Elections Clause (U.S.

Const. Art. I, § 4) and does not violate the Tenth Amendment. The

Ninth Circuit’s decision accords with the only other court of

appeals decision to address the constitutionality of the Act,

Association of mmuni rganization form Now Vv.

Edgar, 56 F.3d 791 (7th Cir. 1995), and with all of the district

court decisions addressing that subject.’

1. The court of appeals correctly held that Congress had the

power to enact the NVRA under the Elections Clause, U.S. Const.

Art. I, § 4 See Pet. App. 7; accord ACORN v. Edgar, 56 F.3d at

793-795. That Clause provides:

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.’

A natural reading of the term "Manner of holding Elections"

* ACORN v. Miller, Nos. 4:95-cv-45, 1:95-cv-184 & 1:95-cv-386

(W.D. Mich. Dec. 13, 1995); Condon v. Reno, Civ. Nos. 3:95-192-0 &

3:95-345-0 (D.S.C. Nov. 20, 1995); Virginia v. United States, No.

3:95CV357 (RLW) (E.D. Va. Oct. 18, 1995); ACORN v. Ridge, Nos. Civ.

A. 94-7671 & Civ. A. 95-382, 1995 WL 136913 (E.D. Pa. Mar. 30,

1995); see also Wom V v. Graves, No. 95-2350-KHV

(D. Kan. Nov. 30, 1995) (granting preliminary injunction requiring

Kansas to comply with NVRA).

, The Elections Clause does not refer to presidential

elections. As the Seventh Circuit observed, however, this Court

has construed Article II, Section 2, which does address that

subject, "to grant Congress power over Presidential elections

coextensive with that which Article I section 4 grants it over

congressional elections." ACORN v. Edgar, 56 F.3d at 793 (citing

Burroughs v. United States, 290 U.S. 534 (1934)); see also Buckley

v. Valeo, 424 U.S. 1, 13 n.16 (1976).

8

includes the process of registering voters. As this Court stated

in Smiley v. Holm, 285 U.S. 355, 366 (1932):

(T] hese comprehensive words ["Times, Places and Manner")

embrace authority to provide a complete code for congres-

sional elections, not only as to times and places, but in

relation to notices, registration, supervision of voting,

protection of voters, prevention of fraud and corrupt

practices, counting of votes, duties of inspectors and

canvassers, and making and publication of election

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.

See also Ex parte Siebold, 100 U.S. (10 Otto) 371, 379-380 (1880)

(upholding a statute providing for federal supervision of a state’s

voter registration process as a proper exercise of the "Times,

Places and Manner" authority); ACORN v. Edgar, 56 F.3d at 793

("Times, Places and Manner" includes process of registration).

Thus, the NVRA’s adoption of uniform, nationwide procedures for

registering to vote in elections for federal office falls squarely

within the scope of the Elections Clause.

By virtue of the Elections Clause, the conduct of federal

elections is "one of the few areas in which the Constitution

expressly requires action by the States." U.S. m_ Lim:

v. Thornton, 115 S. Ct. 1842, 1855 (1995). The Elections Clause

provides "that the state legislatures ‘shall’ prescribe the details

necessary to hold congressional elections." Id. at 1883 (Thomas,

J., dissenting) (quoting U.S. Const. Art. I, § 4); see also

Siebold, 100 U.S. (10 Otto) at 388 ("It is the duty of the States

to elect representatives to Congress."). As the court of appeals

held, that obligation is one that, the Constitution contemplates the

9

States will bear at their own expense. Pet. App. 9; accord ACORN

v. Edgar, 56 F.3d at 794.

Although the States have the initial obligation to set up

procedures for elections for federal office, Congress has "ultimate

authority" over federal election procedures. U.S. imits, 115

S. Ct. at 1899 (Thomas, J., dissenting). Thus, even when States

prescribe their own procedures, Congress retains "a general

supervisory power over the whole subject." Siebold, 100 U.S. (10

Otto) at 387. The Clause expressly empowers Congress "at any time"

to "make" its own regulations or to "alter" the States’ regula-

tions. As this Court has explained (Siebold, 100 U.S. (10 Otto) at

383-384):

If (Congress) only alters, leaving, as manifest convenience

requires, the general organization of the polls to the State,

there results a necessary co-operation of the two governments

in regulating the subject. But no repugnance in the system of

regulations can arise thence; for the power of Congress over

the subject is paramount. It may be exercised as and when

Congress sees fit to exercise it.

It is clear that, when Congress "alters" a State’s rules, the state

officials remain responsible for carrying them out.‘ That is also

true when Congress makes its own rules, for state officials owe

duties "as well to the United States as to the State. This

necessarily follows from the mixed character of the transaction, --

* See ACORN v. Edgar, 56 F.3d at 795:

The first sentence [of the Elections Clause], remember,

requires the states to create and operate * * * a system

(for electing federal officials) and the second authoriz-

es 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.