No. 95-673 In the Supreme Court of the United States OCTOBER TERM, 1995 PETE WILSON, GOVERNOR OF CALIFORNIA, ET AL., PETITIONERS v. VOTING RIGHTS COALITION, ET AL., ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT BRIEF FOR THE FEDERAL RESPONDENTS IN OPPOSITION DREW S. DAYS, III Solicitor General DEVAL L. PATRICK Assistant Attorney General STEVEN H. ROSENBAUM SAMUEL R. BAGENSTOS Attorneys Department of Justice Washington, D.C. 20530 (202) 514-2217 ---------------------------------------- Page Break ---------------------------------------- QUESTIONS PRESENTED 1. Whether the National Voter Registration Act of 1993 (NVRA), 42 U.S.C. 1973gg et seq., is a con- stitutional exercise of Congress's power under the Elections Clause, U.S. Const. Art. I, 4, to regulate the manner in which States administer elections for federal office. 2. Whether the NVRA is a constitutional exercise of Congress's power to enforce the Fourteenth and Fifteenth Amendments. (I) ---------------------------------------- Page Break ---------------------------------------- TABLE OF CONTENTS Page Opinions below . . . . 1 Jurisdiction . . . . 1 Statement . . . .2 Argument . . . . 6 Conclusion . . . . 19 TABLE OF AUTHORITIES Cases: Association of Community Organizations for Reform Now v. Edgar, 56 F.3d 791 (7th Cir. 1995) . . . . 5, 6, 7, 8, 9, 10, 11, 15, 16 Association of Community Organizations for Reform Now v. Miller, 912 F. Sup. 976 (W.D. Mich. 1995) . . . . 7 Association of Community Organizations for Reform Now v. Ridge, Nos. Civ. A. 94-7671 & 95-382, 1995 WL 136913 (E.D. Pa. Mar. 30, 1995) . . . . 7 Buckley v. Valeo, U.S. 1 (1976) . . . . 7 Burroughs v. United States, 290 U.S. 534 (1934) . . . . 7 City of Rome v. United States, 446 U.S. 156 (1980) . . . . 18 Condon v. Reno, Nos. Civ. A. 3:95-192-0 & 3:95-345-0, 1995 WL 819009 (D.S.C Nov. 17, 1995) . . . . 7 Hodel v. Virginia Surface Mining & Reclamation Ass'n, 452 U.S. 264 (1981) . . . . 12 Katzenbach v. Morgan, 384 U.S. 641 (1966) . . . . 17 League of Women Voters v. Graves, No. 95-2350- KHV (D. Kan. Nov. 30, 1995) . . . . 7 New York v. United States, 505 U.S. 144 (1992) . . . . 6, 12, 13 Oregon v. Mitchell, 400 U.S. 112 (1970) . . . . 10, 11, 17-18 Siebold, Ex parte, 100 U.S. 371 (1880) . . . . 8, 9, 10, 11, 13, 14 Smiley v. Holm, 285 U.S. 355 (1932) . . . . 7, 11 (III) ---------------------------------------- Page Break ---------------------------------------- IV Cases-Continued: Page South Carolina v. Katzenbach, 383 U.S. 301 (1966) . . . . 17 U.S. Term Limits, Inc. V. Thornton, 115 S. Ct. 18-42 (1995) . . . . 8, 9, 11-12, 13, 16 Virginia v. United States, No. 3:95CV357 (RLW) (E.D. Va. Oct. 18, 1995) . . . . Watson v. Buck, 313 U.S. 387 (1941) . . . . 17 Wesberry v. Sanders, 376 U.S. 1 (1964) . . . . 13 Yarbrough, Ex parte, 110 U.S. 651 (1884) . . . . 10 Constitution, statutes, and rule: U.S. Const.: Art. I: 4 (Elections Clause) . . . . 5, 6, 7, 8, 10, 11, 13, 15, 16 8, Cl. 3 (Commerce Clause) . . . . 12 Art. II, 2 . . . . . 7 Amend. X . . . . 5, 6, 12, 13 Amend. XIV . . . . 17, 18 Amend. XV . . . . 17, 18 Low-Level Radioactive Waste Policy Amendments Act of 1985, Pub. L. No. 99-240,99 Stat. 1842 . . . . 12 National Voter Registration Act of 1993, 42 U.S.C. 1973gg et seq. (Supp. v 1993) . . . . 2 42 U.S.C. 1973gg(b)(l) . . . . 2 42 U.S.C. 1973gg note . . . . 4 42 U.S.C. 1973gg-2(a)(1) . . . . 2 42 U.S.C. 1973gg-2(a)(3) . . . . 2 42 U.S.C. 1973gg-3(c) . . . . 15 42 U.S.C. 1973gg-3(c)(1) . . . . 2 42 U.S.C. 1973gg-3(c)(2)(A) . . . . 3 42 U.S.C. 1973gg-3(c)(2)(C) . . . . 3 42 U.S.C. 1973gg-3(c)(2)(D) . . . . 3 42 U.S.C. 1973gg-3(e) . . . . 3, 15 42 U.S.C. 1973gg-4 . . . . 2 42 U.S.C. 1973gg-5(a) . . . . 2 42 U.S.C. 1973gg-5(a)(6) . . . . 3, 15 42 U.S.C. 1973gg-6(a)(6)(C) . . . . 15 42 U.S.C. 1973gg-5(d) . . . . 3, 15 ---------------------------------------- Page Break ---------------------------------------- V Statutes, regulations and rule-Continued: Page 42 U.S.C. 1973gg-6(a)(4) . . . . 3 42 U.S.C. 1973gg-6(b) . . . . 3 42 U.S.C. 1973gg-6(b)(1) . . . . 4 42 U.S.C. 1973gg-6(b)(2) . . . . 4 42 U.S.C. 1973gg-6(c)(2)(A) . . . . 3 42 U.S.C. 1973gg-6 note . . . . 4 42 U.S.C. 1973gg-7(b)(2) . . . . 3 42 U.S.C. 1973gg-9 . . . . 4 42 U.S.C. 1973gg-10(2) . . . . 4 2 U.S.C. 7 . . . . 10 2 U.S.C. 9 . . . . 10 3 U.S.C. 1 . . . . 10 39 U.S.C. 3629 (Supp. V 1993) . . . . 4 42 U.S.C. 1973aa-1(d) . . . . 10 Fed. R. Civ. P. 65(a)(2) . . . . 5 Miscellaneous: The Federalist No. 59 (Alexander Hamilton) (Clinton Rossiter ed., 1961) . . . . 11 H.R. Rep. No. 9, 103d Cong., 1st Sess. (1993) . . . . 3, 4, 15 S. Rep. No. 6, 103d Cong., 1st Sess. (1993) . . . . 16, 18 Staff of Subcom. on Civil and Constitutional Rights of the House Comm. on the Judiciary, 98th Cong., 2d Sess., After the Voting Rights Act: Registration Barriers (Comm. Print 1984) (H.R. Ser. No. 18) . . . .18 ---------------------------------------- Page Break ---------------------------------------- In the Supreme Court of the United States OCTOBER TERM, 1995 NO. 95-673 PETE WILSON, GOVERNOR OF CALIFORNIA, ET AL., PETITIONERS v. VOTING RIGHTS COALITION, ET AL. ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT BRIEF FOR THE FEDERAL RESPONDENTS IN OPPOSITION OPINIONS BELOW The opinion of the court of appeals (Pet. App. 1-12) is reported at 60 F.3d 1411. The opinion of the district court (Pet. App. 13-25) is reported at 878 F. Supp. 1324. JURISDICTION The judgment of the court of appeals was entered on July 24, 1995. The petition for a writ of certiorari was filed on October 23, 1995 (a Monday). The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). (1) ---------------------------------------- Page Break ---------------------------------------- 2 STATEMENT 1. This case involves the State of California's federal constitutional challenge to the National Voter Registration Act of 1993 (NVRA or Act), 42 U.S.C. 1973gg et seq. (Supp. V 1993). The Act is designed to "increase the number of eligible citizens who register to vote in elections for Federal office," 42 U.S.C. 1973gg(b)(1) (Supp. V 1993). To that end, it estab- lishes uniform, nationwide procedures for registering to vote in federal elections. The Act requires States to accept voter registra- tion applications "made simultaneously with an appli- cation for a motor vehicle driver's license," 42 U.S.C. 1973gg-2(a)(1) (Supp. V 1993), as well as with applica- tions submitted at the offices of other state agencies, 42 U.S.C. 1973gg-2(a)(3) (Supp. V 1993). The latter agencies must include state public-assistance offices, "all offices in the State that provide State-funded pro- grams primarily engaged in providing services to persons with disabilities," and other agencies desig- nated by the State. 42 U.S.C. 1973gg-5(a) (Supp. V 1993). The Act also requires state election officials to accept voter registration applications submitted by mail. 42 U.S.C. 1973gg-4 (Supp. V 1993). The Act also contains provisions to ensure the effective operation of the registration methods just described. It requires the employees of state motor vehicles offices to "include a voter registration appli- cation form for elections for Federal office as part of" every driver's license application. 42 U.S.C. 1973gg- 3(c)(1) (Supp. V 1993). That voter registration form must inform applicants of the State's voter eligibility requirements and the penalties for submitting a false application; it may not require any information that ---------------------------------------- Page Break ---------------------------------------- 3 duplicates information already required on the driv- er's license application. 42 U.S.C. 1973gg-3(c)(2)(A) and(D) (Supp. V 1993). When applicants return their completed forms, the motor vehicles employees must forward the voter registration portion of the appli- cation to the "appropriate State election official" for processing. 42 U.S.C. 1973gg-3(e) (Supp. V 1993). Employees in the other designated state agencies must also include a federal voter registration form along with every application for the agency's benefits or services, and must forward completed applications to "the appropriate State election official" for pro- cessing. 42 U.S.C. 1973gg-5(a)(6) and (d) (Supp. V 1993). In all instances, the relevant state election official determines whether the applicant is eligible to vote and makes the ultimate decision whether to place the registrant on the voting rolls. See H.R. Rep. No. 9, 103d Cong., 1st Sess. 8 (1993). The NVRA contains several provisions protecting the integrity of the voting rolls in federal elections. It requires that voter registration forms set forth each eligibility requirement of state law and require the applicant to attest, under penalty of perjury, that he or she meets each requirement. 42 U.S.C. 1973gg- 3(c)(2)(C), 1973gg-7(b)(2) (Supp. V 1993). It also re- quires States to "conduct a general program that makes a reasonable effort to remove the names of ineligible voters from the official lists of eligible voters" because of the death of the registrant or a change in the registrant's residence. 42 U.S.C. 1973gg-6(a)(4) (Supp. V 1993). In addition, it allows States to conduct a program for removing otherwise ineligible voters from the rolls. 42 U.S.C. 1973gg-6(b) and (c)(2)(A) (Supp. V 1993), Any program to protect the integrity of voter registration rolls, however, ---------------------------------------- Page Break ---------------------------------------- 4 must be "uniform, nondiscriminatory, and in com- pliance with the Voting Rights Act of 1965," 42 U.S.C. 1973gg-6(b)(1) (Supp. V 1993), and may not purge voters from the rolls "by reason of the person's failure to vote," 42 U.S.C. 1973gg-6(b)(2) (Supp. V 1993). Finally, the Act makes fraudulent registration a federal crime. 42 U.S.C. 1973gg-10(2) (Supp. V 1993). 2. The Act became effective in California on Jan- uary 1, 1995. See 42.. U.S.C. 1973gg note (Supp. V 1993). On August 12, 1994, the Governor of California "order[ed] California state agencies to comply with the NVRA only `to the extent [that] federal funding is made available for such purposes.'" Pet. App. 14. Because no non-matching federal funding is provided to implement the Act, the Governor's order required total noncompliance. Id. at 3. 1. On December 14, 1994, private plaintiffs filed one of the present actions in the United States District Court for the Northern District of California, seeking declaratory and in- junctive relief requiring the State to comply with the Act. Ibid.; see 42 U.S.C. 1973gg-9 (Supp. V 1993). Shortly thereafter, the State sued the United States in the same court, seeking a declaration that the Act ___________________(footnotes) 1 The United States Departments of Agriculture and Health and Human Services have provided matching funds for the States' costs of implementing the NVRA with respect to applicants for benefits under the AFDC, WIC, and food stamps programs. See H.R. Rep. No. 9, sups, at 11 (expressing in- tent that such matching funds be provided). In addition, the NVRA provides for reduced postal rates for mailings required by the Act, See 39 U.S.C. 3629 (Supp. V 1993); see also 42 U.S.C. 1973gg-6 note (Supp. V 1993). In the absence of state expenditures, however, the Act does not provide for federal funding of the NVRA's implementation. ---------------------------------------- Page Break ---------------------------------------- 5 violates the federal Constitution and an injunction barring its enforcement. Pet. App. 15. The United States filed a counterclaim in the State's action, seeking an injunction to require the State to comply with the Act. ibid. After the two actions were con- solidated, the parties moved for preliminary injunc- tions. ibid. The district court consolidated the preliminary injunction hearing with a trial on the merits of the constitutional issues. Ibid.; see Fed. R. Civ. P. 65(a)(2). After trial, the district court issued a written decision rejecting the State's constitutional chal- lenges to the Act. Pet. App. 13-25. The court held that the NVRA is a valid exercise of Congress's power under the Elections Clause, U.S. Const. Art. I, 4, to regulate the "Times, Places and Manner of holding" elections for federal office. Pet. App. 16-19. The court also held that the Act does not violate the Tenth Amendment since, when acting under the Elections Clause, Congress "may directly regulate the state's manner and means of voter registration without invading an area reserved to the states." Id. at 18. The court permanently enjoined the State from failing to comply with the Act and ordered it to come forward with "a proposed plan for implementing the NVRA." Id. at 21. 3. The court of appeals affirmed. Pet. App. 1-12. Relying in part on the Seventh Circuit's decision upholding the Act in Association of Community Or- ganizations for Reform Now (ACORN) v. Edgar, 56 F.3d 791 (1995), the court determined that Congress's power over the "Times, Places and Manner of hold- ing" elections for federal office includes the power to regulate voter registration procedures. Pet. App. 5. Based on that determination, the court held that "the ---------------------------------------- Page Break ---------------------------------------- 6 Act * * * , on its face, fits comfortably within" Congress's power under the Elections Clause. Id. at 7. The court of appeals rejected the State's argument that the NVRA violates the Tenth Amendment prin- ciples articulated in New York v. United States, 505 U.S. 144 (1992). The court observed that New York held that "Congress could not impose on the states the burden of exercising its power under the Con- stitution to regulate interstate commerce." Pet. App. 8. The court determined that the State's reliance on New York was "flaw[ed]," because, "unlike the com- merce power in Article I, section 8," the Elections Clause "empowers Congress to impose on the states precisely the burden at issue." Id. at 8. The court of appeals emphasized that its decision concerned "an as yet unapplied statute." Pet. App. 4. The court assumed that "interpretive or constitu- tional issues that might arise in the implementation of the Act do not impair our analysis of the Act's facial constitutionality." Ibid. As had the Seventh Circuit in ACORN, the court directed the district court "to approach its task of implementation with an `adequate sensitivity to the principle of federalism.'" Id. at 12 (quoting ACORN, 56 F.3d at 798). The panel retained jurisdiction to consider any subsequent appeals. Pet. App. 12. ARGUMENT The court of appeals correctly held that the NVRA is a valid exercise of Congress's power under the Elections Clause (U.S. Const. Art. I, 4) and does not violate the Tenth Amendment. The Ninth Circuit's decision accords with the only other court of appeals decision to address the constitutionality of the ---------------------------------------- Page Break ---------------------------------------- 7 Act, Association of Community Organizations for Reform Now (ACORN) v. Edgar, 56 F.3d 791 (7th Cir. 1995), and with all of the district court decisions addressing that subject. 2. 1. The court of appeals correctly held that Congress had the power to enact the NVRA under the Elections Clause, U.S. Const. Art. I, 4. See Pet. App. 7; accord ACORN v. Edgar, 56 F.3d at 793-795. That Clause provides: The Times, Places and Manner of holding Elec- tions 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. 3. A natural reading of the term "Manner of holding Elections" includes the process of registering voters. As this Court stated in Smiley v. Helm, 285 U.S. 355, 366 (1932): ___________________(footnotes) 2 ACORN v. Miller, 912 F. Supp. 976 (W.D. Mich. 1995); Condon v. Reno, Nos. Civ. A 3:95-192-0 & 3:95-345-0, 1995 WL 819009 (D.S.C. Nov. 17, 1995); Virginia v. United States, No. 3:95CV357 (RLW) (E.D. Va. Oct. 18, 1995); ACORN v. Ridge, Nos. Civ. A. 94-7671 & 95-382, 1995 WL 136913 (E.D. Pa. Mar. 30, 1995); see also League of Women Voters v. Graves, No. 95- 2350-KHV (D. Kan. Nov. 30, 1995) (granting preliminary injunction requiring Kansas to comply with NVRA). 3 The Elections Clause does not refer to presidential elec- tions. As the Seventh Circuit observed, however, this Court has construed Article II, Section 2, which does address that subject, "to grant Congress power over Presidential elections coextensive with that which Article I section 4 grants it over congressional elections." ACORN v. Edgar, 56 F.3d at 793 (citing Burroughs v. United States, 290 U.S. 534 (1934)); see also Buckley v. Valeo, 424 U.S. 1, 13 n.16 (1976). ---------------------------------------- Page Break ---------------------------------------- 8 [T]hese comprehensive words ["Times, Places and Manner"] embrace 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, pro- tection 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. See also Ex parte Siebold, 100 U.S. 371, 379-380 (1880) (upholding a statute providing for federal supervision of a State's voter registration process as a proper exercise of the "Times, Places and Manner" authority); ACORN v. Edgar, 56 F.3d at 793 ("Times, Places and Manner" includes process of registration). Thus, the NVRA's adoption of uniform, nationwide procedures for registering to vote in elections for federal office falls squarely within the scope of the Elections Clause. By virtue of the Elections Clause, the conduct of federal elections is "one of the few areas in which the Constitution expressly requires action by the States." U.S. Term Limits, Inc. V. Thornton, 115 S. Ct. 1842, 1855 (1995). The Elections Clause provides "that the state legislatures `shall' prescribe the de- tails necessary to hold congressional elections." Id. at 1883 (Thomas, J., dissenting) (quoting U.S. Const. Art. I, 4); see also Siebold, 100 U.S. at 388 ("It is the duty of the States to elect representatives to Congress."). As the court of appeals held, that obligation is one that the Constitution contemplates ---------------------------------------- Page Break ---------------------------------------- 9 the States will bear at their own expense. Pet. App. 9; accord ACORN v. Edgar, 56 F.3d at 794. Although the States have the initial obligation to set up procedures for elections for federal office, Congress has "ultimate authority" over federal elec- tion procedures. U.S. Term Limits, 115 S. Ct. at 1899 (Thomas, J., dissenting). Thus, even when States pre- scribe their own procedures, Congress retains "a general supervisory power over the whole subject ." Siebold, 100 U.S. at 387. The Clause expressly empowers Congress "at any time" to "make" its own regulations or to "alter" the States' regulations. As this Court has explained (Siebold, 100 U.S. at 383-384): If [Congress] only, alters, leaving, as manifest convenience requires, the general organization of the polls to the State, there results a necessary co-operation of the two governments in regulat- ing the subject. But no repugnance in the system of regulations can arise thence; for the power of Congress over the subject is paramount. It may be exercised as and when Congress sees fit to exercise it. It is clear that, when Congress "alters" a State's rules, the state officials remain responsible for carry- ing them out. 4. That is also true when Congress makes its own rules, for state officials owe duties "as ___________________(footnotes) 4 See ACORN v. Edgar, 56 F.3d at 795: The first sentence [of the Elections Clause], remember, re- quires the states to create and operate * * * a system [for electing federal officials] and the second authorizes Congress to alter the state's system-but it is still the state's system, manned by state officers and hence paid for by the state. ---------------------------------------- Page Break ---------------------------------------- 10 well to the United States as to the State. This necessarily follows from the mixed character of the transaction,-State and national." Id. at 388. In the NVRA, Congress made its own rules, and those rules "alter" any inconsistent state rules on the subject. See ACORN v. Edgar, 56 F.3d at 795. And, in keeping with this Court's understanding of the Elections Clause, Congress required the States to administer those rules. The NVRA is not only consistent with this Court's understanding of the Elections Clause but also with historical practice. Each time Congress has regu- lated federal elections, it has compelled the States to implement those regulations. For example, since 1871 Congress has required that all elections for Members of Congress be tabulated by written or printed ballot. See 2 U.S.C. 9. And since 1872 Con- gress has established a uniform, nationwide date on which States must hold elections for federal office. See 2 U.S.C. 7; 3 U.S.C. 1. Those enactments have required States to develop and implement procedures for tabulating, securing, and printing ballots, and to provide for polling places on the federally mandated election date. They have also put States to the choice of either electing state officials by ballot on the federal election date or incurring the additional ex- pense and effort of administering separate processes for state and federal elections. The constitutionality of such federally mandated burdens is firmly estab- lished. Ex parte Yarbrough, 110 U.S. 651, 661 (1884); Siebold, 100 U.S. at 384. This Court has also upheld the federal requirement that States establish a mechanism for accepting absentee ballots in presidential elections. Oregon v. Mitchell, 400 U.S. ---------------------------------------- Page Break ---------------------------------------- 11 112, 118-119 (1970) (opinion of Black, J.) (upholding 42 U.S.C. 1973aa-1(d)). Petitioners suggest that the Elections Clause "was solely designed to allow Congress to regulate federal elections in `extraordinary circumstances' to prevent the States from refusing to conduct federal elec- tions." Pet. 26 (quoting The Federalist No. 59, at 363 (Alexander Hamilton) (Clinton Rossiter cd., 1961)); see also Washington Legal Foundation et al. Amicus Br. (WLF Br.) 11-13; Pacific Legal Foundation Amicus Br. (PLF Br.) 11-13. One important purpose of the Clause was, indeed, to prevent States from destroying the Union by refusing to hold elections for federal office. See The Federalist No. 59, at 363. But the court of appeals correctly determined that the Clause was not limited to that purpose. Pet. App. 7-8 & nn.3-4. As the Seventh Circuit observed in ACORN v. Edgar, the Elections Clause "is broadly worded and has been broadly interpreted." 56 F.3d at 794. The Clause authorizes Congress to exercise its super- visory authority over federal election procedures "at any time," U.S. Const. Art. I, 4, not just when necessary to preserve the Union. See Siebold, 100 U.S. at 392 (Elections Clause power may be exercised "whenever Congress deems it expedient to interfere merely to alter or add to existing regulations of the State"); see also Smiley, 285 U.S. at 366-367. As the Seventh Circuit noted (ACORN v. Edgar, 56 F.3d at 794), "[o]ne of the unquestioned regulations enacted under the authority of Article I section 4 is the fixing of a uniform date for federal elections "-a regulation that can hardly be said to be necessary for the preservation of the Union. The NVRA is a valid exercise of Congress's "coordination function." U.S. ---------------------------------------- Page Break ---------------------------------------- 12 Term Limits, 115 S. Ct. at 1898 (Thomas, J., dissenting). 2. Relying on New York v. United States, 505 U.S. 144 (1992), petitioners contend (Pet. 18-23) that the NVRA violates the Tenth Amendment by requiring state officials to implement its provisions. See also WLF Br. 7-9; PLF Br. 16-20. The court of appeals, like all other courts to consider the issue, correctly rejected that contention. Pet. App. 8-9. In New York, this Court held that the "take title" provision of the Low-Level Radioactive Waste Policy Amendments Act of 1985, Pub. L. No. 99-240, $102,99 Stat. 1842, 1850, violated the Tenth Amendment. That provision was enacted pursuant to Congress's Com- merce Clause power, and it required States either to enact regulations providing for the disposal of all low- level radioactive . waste generated within their borders or to take title to and possession of that waste by January 1, 1996. This Court held that the pro- vision violated the principle that "Congress may not simply `commandeer] the legislative processes of the States by directly compelling them to enact and enforce a federal regulatory program.'" New York, 505 U.S. at 161 (quoting Hodel v. Virginia Surface Mining & Reclamation Ass'n, 452 U.S. 264, 288 (1981)). The Court explained that "[t]he allocation of power contained in the Commerce Clause, for example, authorizes Congress to regulate interstate commerce directly; it does not authorize Congress to regulate state governments' regulation of interstate commerce." New York, 505 U.S. at 166. The Tenth Amendment principles enunciated in New York are inapposite here. The Tenth Amend- ment provides (U.S. Const. Amend. X): ---------------------------------------- Page Break ---------------------------------------- 13 The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people. The Tenth Amendment reserves to the States only "the original powers of sovereignty" that they pos- sessed before adoption of the Constitution. U.S. Term Limits, 115 S. Ct. at 1854. The power to regulate the "Times, Places and Manner" of holding elections for Congress and the presidency, however, "exclusively spr[a]ng out of the existence of the national govern- ment." Ibid. That power, moreover, is expressly "delegated to the United States" (U.S. Const. Amend X) by the Elections Clause. It is therefore not a "Power[]" reserved to the States by the Tenth Amendment. 5 The textual allocation to the States of the auth- ority and obligation to administer the federal election machinery reflects the Framers' recognition that "manifest convenience requires" leaving to the States the general responsibility for conducting elec- tions for federal office. Siebold, 100 U.S. at 383. But the Framers also recognized the strong federal interest in regulating the conduct of federal elections. See Wesberry v. Sanders, 376 U.S. 1, 42 (1964) (Harlan, J., dissenting). Thus, they expressly ___________________(footnotes) 5 Even if the Tenth Amendment did limit Congress's exercise of its Elections Clause authority, the NVRA would fall within those limits. Unlike the situation in New York, in the NVRA Congress did not force States to exercise a congres- sional power to regulate private conduct Cf. New York, 505 U.S. at 166. Rather, Congress exercised its long-standing auth- ority to supervise the States' own conduct in administering elections for federal office. ---------------------------------------- Page Break ---------------------------------------- 14 required state officials to comply with congressional regulations in this area. Congress may exercise this power "at any time, and to any extent which it deems expedient." Siebold, 100 U.S. at 392. If petitioners were correct that Congress may not impose affirmative obligations on States as part of its power to "make or alter" regulations of the federal election process, Congress would be required to federalize the entire voter registration process when- ever it wished to impose some uniform federal re- quirements on that process. Cf. WLF Br. 10. The Court has squarely rejected that argument: "We are unable to see why it necessarily follows that, if Congress makes any regulations on the subject, it must assume exclusive control of the whole subject. The Constitution does not say so." Siebold, 100 U.S. at 383. 6. While Congress has traditionally left "the general organization of the polls to the State" (ibid.), it has always retained the "supervisory and paramount" power that the Framers deemed essential to the preservation of the federal government (id. at 386). The decision in New York did not purport to change those well-established principles. ___________________(footnotes) 6 Petitioners read (Pet. 25) Siebold as standing only for the limited proposition that Congress may attach additional pen- alties to voter fraud committed by state officials in federal elections. The holding of Siebold is not so limited. Siebold upheld a federal statute that provided for the appointment of federal officers to supervise state officials in the registration of voters, administration of voting rolls, and staffing of polling places in elections for federal office. See Siebold, 100 U.S. at 379-382. The Court held that Congress may subject state officials to this kind of federal supervision because, in the area of federal elections, state officials owe duties to the United States as well as the State. Id. at 388. ---------------------------------------- Page Break ---------------------------------------- 15 3. Despite Congress's broad power to regulate federal elections, petitioners contend that the NVRA violates principles of federalism because it requires employees of the state Department of Motor Vehicles and public assistance agencies "to perform federal registration duties wholly outside their usual line of work." Pet. 22 (internal quotation marks omitted). That contention is factually incorrect. Under the Act, it is the "appropriate State election official''-as designated by state law-who registers voters, de- termines eligibility, and maintains the voter rolls, 42 U.S.C. 1973gg-3(e), 1973gg-5(d); see also H.R. Rep. No. 9, 103d Cong., 1st Sess. 8 (1993). The Act imposes only narrow, routine duties on employees at other state agencies: They must include voter registration forms with the driver's license or social service applications they already distribute, see 42 U.S.C. 1973gg-3(c), 1973gg-5(a)(6) (Supp. V 1993); they must provide assistance in filling out the forms when asked, see 42 U.S.C. 1973gg-5(a)(6)(C) (Supp. V 1993); and they must forward the completed forms to the "appropriate State election official," 42 U.S.C. 1973gg-3(e), 1973gg-5(d) (Supp. V 1993). None of those duties is alien to the affected employees' "usual line of work." They must, in all events, distribute forms (for driver's licenses or other state benefits or services) and forward them for processing at most, the Act adds an additional form to the package. Those minimal additional duties are closely related to Congress's power under the Elections Clause to adopt uniform procedures for electing federal offi- cials. See ACORN v. Edgar, 56 F.3d at 796 (noting that Congress might exceed its authority under the Elections Clause if it sought to use that power "to destroy state government, perhaps by constituting all ---------------------------------------- Page Break ---------------------------------------- 16 employees of the state full-time federal voting registrars," but that the NVRA does not imper- missibly interfere with state prerogatives). When it enacted the NVRA, Congress acted against a back- drop of voter registration procedures that varied widely from State to State. For example, only 27 States offered registration by mail. See S. Rep. No.6, 103d Cong., 1st Sess. 12(1993). Twenty-two States permitted voter, registration at motor vehicles offices, but the programs were implemented in different ways. See id. at 7-10. State laws allowing voter registration at other state agencies were also inconsistent. See id. at 15: Congress decided to make these procedures uniform, and it decided to do so in a way that afforded broad opportunities to register to vote. See U.S. Term Limits, 115 S. Ct. at 1858-1859, 1864 (noting that constitutional provisions governing federal elections aim at promoting uniformity). It therefore endorsed the procedures adopted by States that afforded such broad opportunities, and adopted those procedures as national rules. Doing so requires some employees in some States to assume obligations not imposed under current state practice; that, however, is a necessary concomitant of Congress's "coordin- ation function" under the Elections Clause. Id. at 1898 (Thomas, J., dissenting). The present cases entail only a facial challenge to the NVRA. Pet. App. 4. The court of appeals recog- nized that future applications of the Act might raise constitutional issues distinct from those presented here. Id. at 4, 11. The court also recognized that the prospect of such issues arising "dictate[s] that implementation of the Act be done sensitively." Id. at 9; accord ACORN v. Edgar, 56 F.3d at 798 (imple- mentation of NVRA must "exhibit an adequate sensi- ---------------------------------------- Page Break ---------------------------------------- 17 tivity to the principle of federalism"). Accordingly, the court of appeals specifically directed the district court on remand to act "with an informed under- standing of the duality of sovereignty imbedded within the Constitution of the United States." Pet. App. 11. In addition, the panel retained jurisdiction over any later appeals involving implementation. Id. at 12. In light of those actions, petitioners' claim that implementation of the Act will encroach on state prerogatives does not justify further review by this Court at this time. See Watson v. Buck, 313 U.S. 387, 402 (1941) ("Passing upon the possible significance of the manifold provisions of a broad statute in advance of efforts to apply the separate provisions is anal- ogous to rendering an advisory opinion upon a statute or a declaratory judgment upon a hypothetical case."). 4. Petitioners also urge this Court to grant certi- orari to consider whether the NVRA is a valid exer- cise of Congress's power to enforce the Fourteenth and Fifteenth Amendments. Pet. 27-29. While Con- gress's enforcement power under those Amendments provides an alternative ground for upholding the judgment below, that issue was not decided by the court of appeals. In any event, the Act is a proper means of enforcing the Fourteenth and Fifteenth Amendments. The enforcement provisions of the Fourteenth and Fifteenth Amendments authorize Congress to "use any rational means to effectuate the constitutional prohibition of racial discrimination in voting." South Carolina v. Katzenbach, 383 U.S. 301, 324 (1966); accord Katzenbach v. Morgan, 384 U.S. 641, 651 (1966). In the exercise of that authority, Congress may adopt uniform, nationwide rules targeting prac- tices with a discriminatory effect. See Oregon v. ---------------------------------------- Page Break ---------------------------------------- 18 Mitchell, 400 U.S. at 132-133 (opinion of Black, J.) (upholding nationwide ban on literacy tests); id. at 216 (opinion of Harlan, J.) (same); id. at 283-284 (opinion of Stewart, J.) (same); see also City of Rome v. United States, 446 U.S. 156 (1980) (Congress may take action against practices that are discriminatory in effect, even if they lack a discriminatory purpose). Under that principle, the NVRA is well within Congress's enforcement authority. Congress enacted the NVRA after nearly 30 years of experience with the Voting Rights Act and a decade of investigating voter registration procedures, See, e.g., Staff of Sub- comm. on Civil and Constitutional Rights of the House Comm. on the Judiciary, 98th Cong., 2d Sess., After the Voting Rights Act: Registration Barriers (Comm. Print 1984) (H.R. Ser. No. 18). That exper- ience revealed that voter-registration requirements have sometimes been administered in a way designed to deprive minorities of their right to vote. See, e.g., S. Rep. No. 6, supra, at 3, 18; H.R. Ser. No. 18, supra, at 2-5. Congress also considered evidence that existing registration practices have had discrimin- atory effects. See, e.g., S. Rep. No. 6, supra, at 17-18. The NVRA responds to those problems by enacting uniform, nationwide procedures that tend to prevent discriminatory administration of registration laws and make it easier to register. Such uniform rules can be an effective way to enforce the Fourteenth and Fifteenth Amendments. See Oregon v. Mitchell, 400 U.S. at 283-284 (opinion of Stewart, J.). ---------------------------------------- Page Break ---------------------------------------- 19 CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. DREW S. DAYS, III Solicitor General DEVAL L. PATRICK Assistant Attorney General STEVEN H. ROSENBAUM SAMUEL R. BAGENSTOS Attorneys DECEMBER 1995 ---------------------------------------- Page Break ----------------------------------------