Arizona’s Proposition 200: What The Constitution Really Says About Voter Qualifications & Exposing The “Elections Clause” Argument.

Arizona’s Proposition 200: What The Constitution Really Says About Voter Qualifications & Exposing The “Elections Clause” Argument.

- in Features, Publius Huldah


Stock Photo of the Consitution of the United States and Feather Quill

Originally posted at Publius Huldah’s Blog 12/5/2010, Edited 4/1/2014

In the recent opinion of the Ninth Circuit Court of Appeals in Gonzalez v Arizona 200, ***  Judges Sandra S. Ikuta & Sandra Day O’Connor overturned an initiative (Proposition 200) passed by the People of Arizona which … [prepare yourself] … requires Arizona “residents” who apply to register to vote, to provide … [this is really quite shocking] … documentary proof of citizenship!  Yes, THE PEOPLE OF THE STATE OF ARIZONA, which has been overrun with illegal Mexican aliens, want to ensure that only citizens vote.

But Ikuta & O’Connor say The people of Arizona may not do that. Those two judges say that Proposition 200 is void as inconsistent with the National Voter Registration Act of 1993, 42 U.S.C. § 1973gg (NVRA), the “central purpose” of which is “to increase voter registration by streamlining voter registration procedures” (Opinion p. 30). 1 The NVRA does not require applicants for voter registration to provide documentary proof of citizenship. Therefore, say Ikuta & O’Connor, the STATES may not require it.

Nonsense! I will show you that the NVRA is unconstitutional as outside the legislative powers granted to Congress by the Constitution.  It is also contrary to Art. I, Sec. 2, cl. 1, U.S. Constitution, which shows that prescribing qualifications & registration of voters is a pre-existing power expressly reserved by the States!

Congress is granted by Art. I, Sec. 4, cl. 1, a very limited power over the “holding” of “Elections”:  This is the so-called “elections clause” which the federal government is using to gobble up Art. I, Sec. 2, cl.1.  But the federal government acts unlawfully because the “elections clause” is expressly restricted to “The Times, Places and Manner of holding Elections” – it does not extend to prescribing qualifications & registration of voters.


The U.S. Constitution Enshrines the Pre-existing Practice Where THE PEOPLE of The STATES Qualify & Register Voters.

1.   Article I, Sec. 2, clause 1, U.S. Constitution, says:

The House of Representatives shall be composed of members chosen every second Year by the People of the several States, and the Electors in each State shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature. [emphasis added]

The words in bold face tell us THE  STATES set the qualifications for electors [“voters”]:  Whoever votes in elections for the State House, is eligible to vote for members of the federal House of Representatives.

Alexander Hamilton or James Madison [it is not certain which is author] confirms this in Federalist Paper No. 52 (2nd para):

The first view to be taken of …[the House of Representatives] relates to the qualifications of the electors [voters] and the elected. Those of the former are to be the same with those of the electors of the most numerous branch of the State legislatures. The definition of the right of suffrage is very justly regarded as a fundamental article of republican government. It was incumbent on the convention, therefore, to define and establish this right in the Constitution. To have submitted it to the legislative discretion of the States, would have been improper for the same reason; and for the additional reason that it would have rendered too dependent on the State governments that branch of the federal government which ought to be dependent on the people alone. To have reduced the different qualifications in the different States to one uniform rule, would probably have been as dissatisfactory to some of the States as it would have been difficult to the convention. The provision made by the convention appears … to be the best that lay within their option. It must be satisfactory to every State, because it is conformable to the standard already established, or which may be established, by the State itself. It will be safe to the United States, because, being fixed by the State constitutions, it is not alterable by the State governments, and it cannot be feared that the people of the States will alter this part of their constitutions in such a manner as to abridge the rights secured to them by the federal Constitution. [emphasis added]

In  Federalist No. 57 (5th para) Hamilton [or Madison] say:

Who are to be the electors of the federal representatives? …The electors …  are to be the same who exercise the right in every State of electing the corresponding branch of the legislature of the State. [emphasis added]

Do you see? Before the U.S. Constitution was ratified, THE PEOPLE OF THE STATES  qualified & registered voters; these qualifications WERE SET FORTH IN THEIR STATE CONSTITUTIONS, and they differed from STATE to STATE.  This is the practice which was enshrined in Art. I, Sec. 2, cl. 1, U.S. Constitution.

2.  So!  Everyone understood that in the U.S. Constitution, the States – or rather, THE PEOPLE OF THE  STATES by means of their State Constitutions – retained authority to qualify & register voters[…]

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About the author

Lawyer, philosopher & logician. Strict constructionist of the U.S. Constitution. Passionate about The Federalist Papers (Alexander Hamilton, James Madison & John Jay), restoring constitutional government, The Bible, the writings of Ayn Rand, & the following: There is no such thing as Jew & Greek, slave & freeman, male & female, black person & white person; for we are all one person in Christ Jesus.