Voting Rights Coalition v. Wilson

• Decision Date: 24 July 1995
• Docket Number: No. 95-15449,95-15449
• Parties: , 95 Cal. Daily Op. Serv. 5761, 95 Daily Journal D.A.R. 9798 VOTING RIGHTS COALITION; Coalition for an African-American Community Agenda; League of Women Voters of California; California Common Cause; '94 Committee; Stella Dominquez; Cynthia Moreno; and Veronica Moreno, Plaintiffs-Appellees, v. Pete WILSON, Governor of the State of California; Tony Miller, Acting Secretary of State, California; Frank Zolin, Director of the California Department of Motor Vehicles; Eloise Anderson, Director of the California Department of Social Services; Brenda Premo, Director of the California Department of Rehabilitation, Defendants-Appellants, v. Janet RENO, Attorney General; United States of America, Third Party Plaintiffs-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1411

60 F.3d 1411

64 USLW 2070, 95 Cal. Daily Op. Serv. 5761,

95 Daily Journal D.A.R. 9798

VOTING RIGHTS COALITION; Coalition for an African-American

Community Agenda; League of Women Voters of California;

California Common Cause; '94 Committee; Stella Dominquez;

Cynthia Moreno; and Veronica Moreno, Plaintiffs-Appellees, v. Pete WILSON, Governor of the State of California; Tony

Miller, Acting Secretary of State, California; Frank Zolin,

Director of the California Department of Motor Vehicles;

Eloise Anderson, Director of the California Department of

Social Services; Brenda Premo, Director of the California

Department of Rehabilitation, Defendants-Appellants, v. Janet RENO, Attorney General; United States of America,

Third Party Plaintiffs-Appellees.

No. 95-15449.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted June 16, 1995.

Decided July 24, 1995.

Cyrus J. Rickards, Deputy Atty. Gen., Sacramento, CA, for defendants-appellants.

Samuel R. Bagenstos, Steven H. Rosenbaum, U.S. Dept. of Justice, Washington, DC, Mei Lin Kwan-Gett, Mark D. Rosenbaum, ACLU Foundation of Southern California, Los Angeles, CA, Robert Rubin, Lawyers' Committee for Civil Rights of San Francisco Bay Area, San Francisco, CA, for plaintiffs-appellees.

Miriam E. Brewster, Deputy Atty., County of San Diego, San Diego, CA, Anton Leof, Latham & Watkins, San Francisco, CA, Michael J. Guzman, Latham & Watkins, Washington, DC, Daniel J. Popeo, Washington Legal Foundation, Washington, DC, Joseph Remcho, Remcho, Johansen & Purcell, San Francisco, CA, Donald W. Brown, Brobeck, Phleger & Harrison, San Francisco, CA, Douglas I. Horngrad, San Francisco, CA, for amici.

W. Mark Dunn, Asst. Atty. Gen., Com. of Virginia, Richmond, VA, for Com. of Virginia.

Appeal from the United States District Court for the Northern District of California.

Before: GOODWIN, SNEED, and KLEINFELD, Circuit Judges.

SNEED, Circuit Judge:

Governor Wilson, in his official capacity, directed the appropriate officials of the State of California not to comply with the National Voter Registration Act of 1993, 42 U.S.C. Secs. 1973gg-1 to -10 ("the Act"), on constitutional grounds. The Voting Rights Coalition, joined by the Attorney General of the United States, having come together as a result of a suit by the State of California against the United States to enjoin permanently the enforcement of the Act, obtained a permanent injunction in the district court enjoining California from failing to comply with the Act. The State of California sought to stay that injunction pending appeal by way of a motion to this court, which was denied. We affirm the judgment of the district court directing the State of California to comply with the Act.

The Act in form is not a simple directive to the states to provide voter registration at such places as the state receives applications for motor vehicle driver's licenses, and provides public assistance or services to persons with disabilities. Rather, it is a complex statute of ten sections bearing the marks of legislative draftsmanship similar to those borne by the Internal Revenue Code. For example, 42 U.S.C. Sec. 1973gg-3, entitled "SIMULTANEOUS APPLICATION FOR VOTER REGISTRATION AND APPLICATION FOR MOTOR VEHICLE DRIVER'S LICENSE," contains five subsections, (a) through (e), of which the third, (c), sets forth its own two subsections, (1) and (2), and of which the section (2) sets forth its five subsections, (A) through (E). That is not all. Within (A) through (E), there appear in (C) and (D) three subsections each. Thus, following the caption of section 3 of the Act, the State of California must conform to four levels of statutory structures.

This complexity suggests that the implementation of this Act could generate differences between the United States and California of interpretive and, possibly, constitutional importance. For this reason, our opinion is not intended to foreclose future judicial review of any such issues. Today we speak only with respect to an as yet unapplied statute. As a consequence, we assume, but do not decide, that all such interpretive or constitutional issues that might arise in the implementation of the Act do not impair our analysis of the Act's facial constitutionality.

Three provisions of the Constitution must be considered in our analysis of the constitutionality of the Act. The most important is Article I, section 4, which vests in Congress the power to alter state laws pertaining to the "Times, Places and Manner" of electing Representatives and Senators. The second is Article I, section 2, which gives the states the power to fix the qualifications of its voters. The third, on which California primarily relies, is the Tenth Amendment.

The relevant portion of Article I, section 4 reads as follows:

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.

U.S. Const. art. I, Sec. 4, cl. 1. Initially, two aspects of the provision appear. No limits on this power are stated and registration procedures are not mentioned. As Chief Judge Posner of the Seventh Circuit pointed out in Association of Community Orgs. for Reform Now (ACORN) v. Edgar, 56 F.3d 791, 793 (7th Cir.1995), summarized in 63 U.S.L.W. 2776, 2777 (7th Cir. June 20, 1995) (No. 95-1800), registration did not exist as a procedure, separate from establishing one's qualifications to vote at the time and place of voting, when the Constitution was drafted. As a consequence, Article I, section 2 and the Seventeenth Amendment, in vesting the power to fix the qualifications of voters for Representatives and Senators in the states, do not explicitly remove the registration of voters by the states from the reach of the power of Congress, provided by Article I, section 4. The fact that some states include registration in their enumeration of qualifications does not alter this conclusion. ¹

Moreover, the Supreme Court has read the grant of power to Congress in Article I, section 4 as quite broad. In Smiley v. Holm, 285 U.S. 355, 366, 52 S.Ct. 397, 399, 76 L.Ed. 795 (1932), the Court stated that Congress has

authority to provide a complete code for congressional 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.

At an earlier date, Ex Parte Siebold, 100 U.S. 371, 382-97, 25 L.Ed. 717 (1879), upheld the power of Congress to impose duties, prohibitions, and sanctions for state election officials involved in conducting elections for federal office. Conflicting state laws were set aside. ² 100 U.S. at 397.

The broad power given to Congress over congressional elections has been extended to presidential elections, Burroughs v. United States, 290 U.S. 534, 545, 54 S.Ct. 287, 290, 78 L.Ed. 484 (1934), and to party primaries involving contestants for congressional positions, United States v. Classic, 313 U.S. 299, 317, 61 S.Ct. 1031, 1038-39, 85 L.Ed. 1368 (1941). Judge Wisdom of the Fifth Circuit, while sitting on a three-judge district court in United States v. Manning, 215 F.Supp. 272, 284 (W.D.La.1963), expansively observed that " 'the manner of holding elections' therefore must be read as referring to the entire electoral process, from the first step of registering to the last step, the [s]tate's promulgation of honest returns." It is not necessary to rely on a reading of Article I, section 4 of such breadth to find that the Act before us, on its face, fits comfortably within its grasp. However, we are reminded that Justice Black in Oregon v. Mitchell, 400 U.S. 112, 123-25, 91 S.Ct. 260, 264-65, 27 L.Ed.2d 272 (1970), in his plurality opinion, recognized that, while Congress could lower the voting age in federal elections from twenty-one to eighteen, Article I, section 2 bars Congress from doing so in elections for state officials.

This array of authorities supporting a broad reach of Article I, section 4 does not permit this court to limit its meaning to that given it by Hamilton in Federalist No. 59. ³ He saw it as a means by which Congress could preserve itself from states seeking its destruction by refusing to conduct elections. Story enhanced its utility somewhat in his Commentaries. ⁴

The Tenth Amendment position argued by the State of California rests on New York v. United States, 505 U.S. 144, 169-78, 112 S.Ct. 2408, 2425-29, 120 L.Ed.2d 120 (1992), which held, in its relevant part, that Congress could not impose on the states the burden of exercising its power under the Constitution to regulate interstate commerce. Of course, Congress could obtain the consent of a state, or states, to undertake such a burden upon payment of a mutually acceptable consideration. The flaw in the State of California's argument is that it ignores Article I, section 4, which, unlike the commerce power in Article I, section 8, empowers Congress to impose on the states precisely the burden at issue.

Congress may conscript state agencies to carry out voter registration for the election of Representatives and Senators. The exercise of that power by Congress is by its terms intended to be borne by the states without compensation. None of the authorities recognizing the exercise of the Times, Places and Manner power vested in Congress have suggested, even remotely, the necessity of the United States bearing the burden of any alteration it imposed. True, usually the actual cost to the states was relatively small, while in this instance, it may be significant....