Fox Pushes Non-Citizen Voting Myth After Supreme Court Decision On Voter Registration

Blog ››› ››› SERGIO MUNOZ

Fox Business host Stuart Varney baselessly suggested non-citizens will now be compelled to vote as the "end result" of the Supreme Court's decision that Arizona cannot trump federal election law and make it harder for its citizens to register to vote.

In its 7-2 decision in Arizona v. Inter Tribal Council, the Supreme Court rejected Arizona's argument that its state registration law is immune to the federal National Voter Registration Act (NVRA) of 1993, an "open and shut" decision authored by conservative Justice Antonin Scalia that was handed down only three months after oral arguments.

Varney, however, responded to the breaking news that the Court had struck down yet another unconstitutional Arizona law by claiming the decision would not only allow non-citizens to vote, they will now go forth and do so. His guest, Fox News senior legal analyst Andrew Napolitano, while admitting Arizona has a terrible record at enacting constitutional legislation, added to the misinformation by incorrectly asserting "the states decide what the standards are for voting." From the June 17 edition of Varney & Company:

As has been confirmed by multiple studies, non-citizen voting is not a systemic problem and in-person voter fraud is virtually non-existent. Varney is merely repeating the discredited spin about supposed voter fraud that Arizona used to justify this law in the first place. Even if it was a problem, however, Arizona is still required to defer to the federal government's process for verifying citizenship for voter registration purposes.

Under the Elections Clause of the U.S. Constitution, the federal government has the explicit power to preempt state laws that regulate the "times, places and manner of holding [federal] elections." Consistent with its authority to safeguard citizens from state voter suppression, Congress passed the NVRA, which introduced a uniform federal voter registration form that all states must accept.

Because states generally are permitted to set voter qualifications for their citizens, the federal form has different versions reflecting these state-specific qualification requirements. In the case of Arizona, the NVRA requires voters registering in that state to attest under penalty of perjury their U.S. citizenship. Nevertheless, in order to "combat voter fraud," Arizona adopted a ballot initiative in 2004 that rejected the federal registration procedure of the NVRA in favor of one requiring additional proof of citizenship.

In Inter Tribal Council, where the Court's liberal justices were joined by conservative Chief Justice John Roberts and conservative Justices Anthony Kennedy and Scalia, the Supreme Court was forced to remind Arizona yet again that it cannot ignore the U.S. Constitution.

Remarkably, the majority found the statutory interpretation to be so straightforward that Scalia, who has loudly defended anti-immigrant Arizona legislation in the past, wrote the opinion. From the decision:

[T]here is no compelling reason not to read Elections Clause legislation simply to mean what it says.

We conclude that the fairest reading of the statute is that a state-imposed requirement of evidence of citizenship not required by the Federal Form is "inconsistent with" the NVRA's mandate that States "accept and use" the Federal Form. If this reading prevails, the Elections Clause requires that Arizona's rule give way.

Despite the claims of Varney and Napolitano to the contrary, the NVRA does not permit non-citizens to vote. The federal registration form requires citizenship attestation and does not usurp states' power to set voter qualifications. In light of this, the clear unconstitutionality of the Arizona law and the transparent scare tactics utilized by Varney leave the impression that right-wing media may not actually be all that concerned about the insignificant problem of non-citizens voting.

Rather, because voter purges aimed at alleged non-citizen voting were spectacularly unfruitful and possibly 7 percent of Americans (disproportionately the poor, elderly, and voters of color) reported not having access to documentation the Arizona law required, it appears Proposition 200 may have been just another attempt at voter suppression. As reported by The New York Times, the implementation of the Arizona law certainly leads to that conclusion:

Proposition 200's purpose is to combat undocumented immigration, but the state produced no evidence of undocumented immigrants registering or voting in Arizona. As a brief from a group of state and local elections officials from around the country said, "Efforts by noncitizens to register and vote are exceedingly rare" and do not justify making it harder for voters to register. Arizona produced evidence that in 2005 and 2007, only 19 noncitizens registered to vote -- out of 2,734,108 registered state voters.

In the same period, Arizona rejected the registrations of 31,550 people. Most of them -- 87 percent of the Hispanics, 93 percent of the others -- listed the United States as their birthplace. The recorder's office in Arizona's largest county said that most of those it rejected were citizens who lacked required identification.

In sum, Arizona is still "batting zero with the Supreme Court," despite its voter suppression and anti-immigrant fervor. At least Fox's analysis of Inter Tribal Council and its ramifications was accurate on that point.

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