Arizona v. Inter Tribal Council of Arizona Inc., No. 12-71; U.S. Supreme Court; opinion by Scalia, J.; partial concurrence by Kennedy, J.; dissents Thomas and Alito, JJ.; decided June 17, 2013. On certiorari to the U.S. Court of Appeals for the Ninth Circuit.

The National Voter Registration Act of 1993 (NVRA) requires states to "accept and use" a uniform federal form to register voters for federal elections. See 42 U.S.C. § 1973gg-4(a)(1). That "federal form," developed by the federal Election Assistance Commission (EAC), requires only that an applicant aver, under penalty of perjury, that he is a citizen. Arizona law, however, requires voter-registration officials to "reject" any application for registration, including a federal form, that is not accompanied by documentary evidence of citizenship. Respondents, a group of individual Arizona residents and a group of nonprofit organizations, sought to enjoin that Arizona law. Ultimately, the district court granted Arizona summary judgment on respondents' claim that the NVRA pre-empts Arizona's requirement. The Ninth Circuit affirmed in part but reversed as relevant here, holding that the state law's documentary-proof-of-citizenship requirement is pre-empted by the NVRA.

Held: Arizona's evidence-of-citizenship requirement, as applied to federal form applicants, is pre-empted by the NVRA's mandate that states "accept and use" the federal form. Pp. 4-18.

(a) The Elections Clause imposes on states the duty to prescribe the time, place and manner of electing representatives and senators, but it confers on Congress the power to alter those regulations or supplant them altogether. See U.S. Term Limits Inc. v. Thornton, 514 U.S. 779, 804-05. This court has said that the terms "Times, Places, and Manner" "embrace authority to provide a complete code for congressional elections," including regulations relating to "registration." Smiley v. Holm, 285 U.S. 355, 366. Pp. 4-6.

(b) Because "accept and use" are words "that can have more than one meaning," they "are given content … by their surroundings." Whitman v. American Trucking Assns. Inc., 531 U.S. 457, 466. Reading "accept" merely to denote willing receipt seems out of place in the context of an official mandate to accept and use something for a given purpose. The implication of such a mandate is that its object is to be accepted as sufficient for the requirement it is meant to satisfy. Arizona's reading is also difficult to reconcile with neighboring NVRA provisions, such as § 1973gg-6(a)(1)(B) and § 1973gg-4(a)(2).

Arizona's appeal to the presumption against pre-emption invoked in this court's Supremacy Clause cases is inapposite. The power the Elections Clause confers is none other than the power to pre-empt. Because Congress, when it acts under this clause, is always on notice that its legislation will displace some element of a pre-existing legal regime erected by the states, the reasonable assumption is that the text of Elections Clause legislation accurately communicates the scope of Congress' pre-emptive intent.

Nonetheless, while the NVRA forbids states to demand that an applicant submit additional information beyond that required by the federal form, it does not preclude states from "deny[ing] registration based on information in their possession establishing the applicant's ineligibility." Pp. 6-13.

(c) Arizona is correct that the Elections Clause empowers Congress to regulate how federal elections are held, but not who may vote in them. The latter is the province of the states. See U.S. Const., Art. I, § 2, cl. 1; Amdt. 17. It would raise serious constitutional doubts if a federal statute precluded a state from obtaining the information necessary to enforce its voter qualifications. The NVRA can be read to avoid such a conflict, however. Section 1973gg-7(b)(1) permits the EAC to include on the federal form information "necessary to enable the appropriate State election official to assess the eligibility of the applicant." That validly conferred discretionary executive authority is properly exercised (as the government has proposed) to require the inclusion of Arizona's concrete-evidence requirement if such evidence is necessary to enable Arizona to enforce its citizenship qualification.

The NVRA permits a state to request the EAC to include state-specific instructions on the federal form, see 42 U.S.C. § 1973gg-7(a)(2), and a state may challenge the EAC's rejection of that request (or failure to act on it) in a suit under the Administrative Procedure Act. That alternative means of enforcing its constitutional power to determine voting qualifications remains open to Arizona here. Should the EAC reject or decline to act on a renewed request, Arizona would have the opportunity to establish in a reviewing court that a mere oath will not suffice to effectuate its citizenship requirement and that the EAC is therefore under a nondiscretionary duty to include Arizona's concrete-evidence requirement on the federal form. Pp. 13-17.

677 F.3d 383, affirmed.