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Justice Thomas, Quoting Rob Natelson, Had the Constitution Correct In the Arizona Citizenship-for-Voting Case

2013-0414 RGNNOTE: This is the first of several short commentaries on recent Supreme Court decisions.

The Supreme Court recently ruled that Arizona’s law requiring proof of citizenship for voting violates federal statutes. In his dissent, Justice Thomas relied heavily on my own research.

The Independence Institute did not participate in that case. So how did it happen that I was cited? In 2010 the University of Pennsylvania Journal of Constitutional Law published my article on the original meaning of a constitutional provision relevant to the decision. The provision is Article I, Section 4—which the Court called the “Elections Clause,” but is more accurately entitled the “Times, Places and Manner Clause.” The Clause provides that the states may regulate the “Times, Places and Manner of holding Elections for Senators and Representatives,” but that Congress may override most of these regulations.

In the article, I discuss exactly what the Founders meant by the phrase “Times, Places and Manner of holding Elections,” and how Congress’s power over its own elections should be interpreted.

The recent case involved whether Arizona’s requirement that voters show proof of citizenship when registering to vote violated federal law. The Court had to decide how widely to read a federal statute and how widely to read Congress’s authority under the Times, Places and Manner Clause.

My research into the subject was prompted by questions about campaign finance laws, not by non-citizens voting in elections—but my findings proved relevant here as well.

In his dissent, Justice Thomas:

* Cited my work in explaining the precise meaning of “Manner of holding Elections,” and

* Adopted my conclusion that in cases of doubt Congress’s authority under the Times, Places and Manner Clause should be interpreted narrowly.

Needless to say, I believe Justice Thomas’s dissent was correct.

The basic problem here is that if you read expansively Congress’s power to regulate its own elections, this could enable Congress to manipulate the rules to protect itself. During the debates over the Constitution, many of our Founders saw the potential danger. Not only opponents of the Constitution but even many of its advocates expressed serious doubts about the Times, Places and Manner Clause. The Constitution was ratified only when its staunchest proponents represented to the ratifiers that the courts would interpret the Clause narrowly—presumably because of the risks.

So, from the point of view of the Founders, the Court in this case was wrong and Justice Thomas—as usual—was right.

Rob Natelson