Secretaries of State Argue 9th Circuit Wrongly Stripped States' Constitutional Authority Over Voter Qualifications
Source: M.D. Kittle. "Secretaries Of State: 9th Circuit 'Erased' States' Election Rights." September 5, 2026. thefederalist.com
The Gist
Three Republican secretaries of state are arguing to the Supreme Court that a federal appeals court wrongly took away states' constitutional right to verify voter citizenship and remove ineligible voters from rolls. They say the Constitution clearly gives states—not the federal government—the power to decide who can vote, and a 1993 federal law can't override that fundamental right.
Conclusion
The Supreme Court should reverse the 9th Circuit Court of Appeals' ruling because it unconstitutionally strips states of their exclusive, constitutionally-guaranteed authority to set voter qualifications, including requiring proof of citizenship and removing noncitizens from voter rolls.
Premises
- The U.S. Constitution's Qualifications Clause and Seventeenth Amendment confer upon states the exclusive authority to determine voter qualifications for their elections.
- The 9th Circuit's broad reading of the NVRA extends Arizona v. Inter Tribal Council of Arizona well beyond its original intent, collapsing the distinction between voter registration and voting.
- The 9th Circuit's ruling treats the NVRA's 90-day removal safeguard as an absolute prohibition on removing persons who were never eligible to register in the first place, rather than a limited procedural safeguard.
- The Constitution's Elections Clause does not empower Congress to preempt state voter qualifications enacted under states' constitutional authority.
- If the NVRA is interpreted to preempt states from imposing and enforcing citizenship qualifications, this interpretation itself raises serious constitutional doubt about the NVRA's validity.
- States have historically and consistently exercised this power over voter qualifications for 250 years, establishing it as a longstanding tenet of federalism.
- Empirical evidence shows noncitizens are appearing on voter rolls and voting in federal elections (e.g., New Jersey's discovery of 6,600 noncitizens on voter rolls, with hundreds having voted), demonstrating the practical necessity of state enforcement powers.
Assumptions
- The Qualifications Clause and Seventeenth Amendment should be interpreted as granting states exclusive and essentially unlimited authority over voter qualifications, immune from federal statutory oversight.
- The NVRA's 90-day quiet period provision was intended only to prevent erroneous removal of eligible voters, not to protect ineligible registrants from removal.
- Preventing noncitizen voting is a significant and pressing problem requiring robust state enforcement mechanisms, despite acknowledged rarity in broader elections data.
- State-level proof-of-citizenship requirements do not meaningfully suppress eligible voters or create significant barriers to legitimate registration.
- Judicial interpretation expanding federal statutory reach in this area constitutes improper 'rewriting' of law rather than legitimate statutory interpretation.
- The precedent set by Arizona v. Inter Tribal Council was narrowly intended to apply only to the federal registration form's attestation requirement, not to broader state enforcement mechanisms.