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Perez: Congress Must Retain Power to Protect Voters

The Supreme Court faces another critical voting rights case Monday with a challenge to a restrictive Arizona voter registration law just weeks after it considered the landmark Voting Rights Act. Following an election marred by long lines and confusion at the polls, the court now has two opportunities to protect voting rights for millions of citizens. To honor the promise of our Constitution that all Americans have the right to vote without facing discrimination, the court must step up and ensure our elections remain free, fair, and accessible for all.

Both the Voting Rights Act case (Shelby County v. Holder) and Arizona v. The Inter Tribal Council of Arizona come down to Congress’s power to regulate elections. Where the Shelby County case examined the continuing need for the Voting Rights Act, the country’s most successful piece of civil rights legislation, Monday’s argument will focus on whether Congress has the power to enact measures that may override state law to protect the right to vote in federal elections. The answer is an unequivocal yes.

Arizona v. The Inter Tribal Council of Arizona involves a law passed in 2004 as state ballot initiative Proposition 200 that requires voters to submit proof of citizenship when registering to vote. But the National Voter Registration Act (also known as Motor Voter) provides a simple, uniform, federal registration form that states must “accept and use.” By rejecting more than 30,000 federal forms because they did not provide additional citizenship documentation, Arizona violated this federal law.

The consequences were clear: Arizona’s law led to the disenfranchisement of U.S. citizens. These voters did nothing wrong. They used the federal form, which does not require additional documentation, but they were not allowed to register.

Arizona is not alone. In 2011 and 2012, dozens of states passed measures making it harder to vote. And that is precisely why Congress passed Motor Voter in the first place — to prevent states from passing laws that block eligible Americans from voting. The courts and the Department of Justice rejected many of these laws. The Supreme Court must do the same, and uphold Congress’s power to protect voting rights.

Motor Voter has been extremely successful. It has improved voter registration access by helping overcome a confusing patchwork of state rules. This ensures every citizen has a simple way to register to vote.

The Constitution provides Congress the clear authority to regulate federal elections. Under the Elections Clause, in Section 4 of the Constitution, Congress has the power to “make or alter” law to protect voting rights. Congress used this authority to enact registration procedures such as Motor Voter.

In the end, Arizona’s proof-of-citizenship requirement is not necessary. The state claims it’s needed to protect election integrity, but Motor Voter already contains safeguards to ensure only eligible U.S. citizens can register and vote. In fact, when Congress passed this provision of the law, it debated and specifically rejected an amendment allowing states to ask for proof of citizenship when registering.

Our country was founded on the principle that we all are created equal. Living up to that promise means it is wrong to pass laws, like Arizona’s, that block some eligible Americans from voting and deny them the opportunity to participate equally in our democracy. Congress has taken steps to protect our fundamental right to vote — so must the Supreme Court.

Myrna Pérez serves as senior counsel in the Democracy Program at the Brennan Center for Justice at NYU School of Law.

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