CASES ADJUDGED
IN THE

SUPREME COURT OF THE UNITED STATESATOCTOBER TERM, 2012

ARIZONA et al. v. INTER TRIBAL COUNCIL OF
ARIZONA, INC., et al.
certiorari to the united states court of appeals forthe ninth circuit
No. 12–71. Argued March 18, 2013—Decided June 17, 2013
The National Voter Registration Act of 1993 (NVRA) requires States to“accept and use” a uniform federal form to register voters for federal
elections. 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 offcials 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 nonproftorganizations, sought to enjoin that Arizona law. Ultimately, the District Court granted Arizona summary judgment on respondents' claimthat the NVRA pre-empts Arizona's requirement. The Ninth Circuit
affrmed 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. 7–20.
(a) The Elections Clause imposes on States the duty to prescribe thetime, place, and manner of electing Representatives and Senators, but
1

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ARIZONA v. INTER TRIBAL COUNCIL OF ARIZ., INC.
Syllabus
it confers on Congress the power to alter those regulations or supplantthem altogether. See U. S. Term Limits, Inc. v. Thornton, 514 U. S.
779, 804–805. This Court has said that the terms “Times, Places, andManner” “embrace authority to provide a complete code for congressional elections,” including regulations relating to “registration.” Smiley v. Holm, 285 U. S. 355, 366. Pp. 7–9.
(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 offcial 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 suffcient for the requirement it is meant to satisfy. Arizona's
reading is also diffcult 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 inthis Court's Supremacy Clause cases is inapposite. The power theElections Clause confers is none other than the power to pre-empt. Because Congress, when it acts under this Clause, is always on notice thatits legislation will displace some element of a pre-existing legal regime
erected by the States, the reasonable assumption is that the text ofElections Clause legislation accurately communicates the scope of Congress's 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. 9–15.
(c) Arizona is correct that the Elections Clause empowers Congress
to regulate how federal elections are held, but not who may vote inthem. 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 afederal statute precluded a State from obtaining the information necessary to enforce its voter qualifcations. The NVRA can be read to avoid
such a confict, however. Section 1973gg–7(b)(1) permits the EAC toinclude on the Federal Form information “necessary to enable the appropriate State election offcial 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 qualifcation.
The NVRA permits a State to request the EAC to include statespecifc 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

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Syllabus(or failure to act on it) in a suit under the Administrative ProcedureAct. That alternative means of enforcing its constitutional power todetermine voting qualifcations 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 oathwill not suffce 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. 15–20.
677 F. 3d 383, affrmed.
Scalia, J., delivered the opinion of the Court, in which Roberts, C. J.,
and Ginsburg, Breyer, Sotomayor, and Kagan, JJ., joined, and inwhich Kennedy, J., joined in part. Kennedy, J., fled an opinion concurring in part and concurring in the judgment, post, p. 20. Thomas, J., post,
p. 22, and Alito, J., post, p. 38, fled dissenting opinions.

Thomas C. Horne, Attorney General of Arizona, argued
the cause for petitioners. With him on the briefs for state
petitioners were David R. Cole, Solicitor General, Paula S.
Bickett, Thomas M. Collins, Assistant Attorney General,
Melissa G. Iyer, and M. Miller Baker. M. Colleen Connor
fled a brief for petitioners Twenty-six County Recorders andElection Directors.
Patricia A. Millett argued the cause for respondents.
With her on the brief for respondents Inter Tribal Councilof Arizona, Inc., et al. were Jon M. Greenbaum, Mark A.
Posner, Michael C. Small, Christopher M. Egleson, David
J. Bodney, David B. Rosenbaum, Thomas L. Hudson, Joe
P. Sparks, Laughlin McDonald, and Daniel B. Kohrman.
Thomas A. Saenz, Nina Perales, and Karl J. Sandstrom fleda brief for respondents Gonzalez et al.
Deputy Solicitor General Srinivasan argued the cause for
the United States as amicus curiae urging affrmance.
With him on the brief were Solicitor General Verrilli, Assistant Attorney General Perez, John F. Bash, Diana K.
Flynn, and Holly A. Thomas.**Briefs of amici curiae urging reversal were fled for the State of Alabama et al. by Luther Strange, Attorney General of Alabama, John C.
Neiman, Jr., Solicitor General, and Andrew L. Brasher, Deputy Solicitor

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ARIZONA v. INTER TRIBAL COUNCIL OF ARIZ., INC.
Opinion of the Court

Justice Scalia delivered the opinion of the Court.
The National Voter Registration Act requires States to“accept and use” a uniform federal form to register votersfor federal elections. The contents of that form (colloquiallyknown as the Federal Form) are prescribed by a federal
agency, the Election Assistance Commission. The Federal
Form developed by the EAC does not require documentary
evidence of citizenship; rather, it requires only that an appliGeneral, and by the Attorneys General for their respective States as follows: Samuel S. Olens of Georgia, Derek Schmidt of Kansas, Bill Schuetteof Michigan, E. Scott Pruitt of Oklahoma, and Greg Abbott of Texas; for
the American Civil Rights Union et al. by Peter J. Ferrara; for the American Unity Legal Defense Fund by Barnaby W. Zall; for the Eagle Forum
Education & Legal Defense Fund, Inc., by Lawrence J. Joseph; for theLandmark Legal Foundation by Richard P. Hutchison; for Members ofCongress by Daniel E. Lungren; for the Mountain States Legal Foundation by Steven J. Lechner; for Kris W. Kobach, Kansas Secretary of State,
by Mr. Kobach, pro se, and Ryan A. Kriegshauser; and for Arizona State
Senator Russell Pearce by James F. Peterson.
Briefs of amici curiae urging affrmance were fled for the Asian American Legal Defense and Education Fund et al. by Michael D. Nolan; forCommunity Voter Registration Organizations by Walter Dellinger, Jonathan D. Hacker, Loren L. Alikhan, Brenda Wright, and Lisa J. Danetz;
for Constitutional Law Professors by Douglas T. Kendall, Elizabeth B.
Wydra, David H. Gans, Wendy R. Weiser, and Myrna Pérez; for Election
Administrators by David W. Ogden and Daniel S. Volchok; for LatinoJustice PRLDEF et al. by Michael Dore, Catherine Weiss, Natalie J. Kraner,
Lawrence Bluestone, and Juan Cartagena; for the League of Women Voters by Paul M. Smith, Michael B. DeSanctis, Jessica Ring Amunson, and
Lloyd Leonard; for Members of Congress by Charles A. Rothfeld andBrian J. Wong; for the NAACP Legal Defense & Educational Fund, Inc.,et al. by Debo P. Adegbile, Elise C. Boddie, Ryan P. Haygood, Joshua
Civin, Michael B. de Leeuw, Wade Henderson, Lisa M. Bornstein, Steven
M. Freeman, Jerome Gotkin, and Michael Arnold; for the National Education Association et al. by Alice O'Brien, Jason Walta, Judith A. Scott,
Walter Kamiat, Mark Schneider, John J. Sullivan, and William Lurye;
and for the Overseas Vote Foundation et al. by Pamela S. Karlan, Jeffrey
L. Fisher, and Kevin K. Russell.
John Eastman, Anthony T. Caso, and Edwin Meese III fled a brief for
the Center for Constitutional Jurisprudence as amicus curiae.

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5

Opinion of the Courtcant aver, under penalty of perjury, that he is a citizen. Arizona law requires voter-registration offcials to “reject” anyapplication for registration, including a Federal Form, thatis not accompanied by concrete evidence of citizenship. The
question is whether Arizona's evidence-of-citizenship requirement, as applied to Federal Form applicants, is preempted by the Act's mandate that States “accept and use”
the Federal Form.
I
Over the past two decades, Congress has erected a complex superstructure of federal regulation atop state voterregistration systems. The National Voter Registration Act
of 1993 (NVRA), 107 Stat. 77, as amended, 42 U. S. C.
§ 1973gg et seq., “requires States to provide simplifed systems for registering to vote in federal elections.” Young v.
Fordice, 520 U. S. 273, 275 (1997). The Act requires eachState to permit prospective voters to “register to vote inelections for Federal offce” by any of three methods: simultaneously with a driver's license application, in person, or by
mail. § 1973gg–2(a).
This case concerns registration by mail. Section 1973gg–
2(a)(2) of the Act requires a State to establish procedures forregistering to vote in federal elections “by mail application
pursuant to section 1973gg–4 of this title.” Section 1973gg–
4, in turn, requires States to “accept and use” a standard
federal registration form. § 1973gg–4(a)(1). The Election
Assistance Commission is invested with rulemaking authority to prescribe the contents of that Federal Form.
§ 1973gg–7(a)(1); see § 15329. 1 The EAC is explicitly
instructed, however, to develop the Federal Form “ inconsultation with the chief election offcers of the States.”§ 1973gg–7(a)(2). The Federal Form thus contains a number
1

The Help America Vote Act of 2002 transferred this function from theFederal Election Commission to the EAC. See § 802, 116 Stat. 1726, codifed at 42 U. S. C. §§ 15532, 1973gg–7(a).

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ARIZONA v. INTER TRIBAL COUNCIL OF ARIZ., INC.
Opinion of the Courtof state-specifc instructions, which tell residents of eachState what additional information they must provide andwhere they must submit the form. See National Mail Voter
Registration Form, pp. 3–20, online at http://www.eac.gov(all Internet materials as visited June 11, 2013, and available
in Clerk of Court's case fle); 11 CFR § 9428.3 (2012). Eachstate-specifc instruction must be approved by the EAC before it is included on the Federal Form.
To be eligible to vote under Arizona law, a person must bea citizen of the United States. Ariz. Const., Art. VII, § 2;
Ariz. Rev. Stat. Ann. § 16–101(A) (West 2006). This caseconcerns Arizona's efforts to enforce that qualifcation. In
2004, Arizona voters adopted Proposition 200, a ballot initiative designed in part “to combat voter fraud by requiring
voters to present proof of citizenship when they register tovote and to present identifcation when they vote on election
day.” Purcell v. Gonzalez, 549 U. S. 1, 2 (2006) (per curiam).2 Proposition 200 amended the State's election code
to require county recorders to “reject any application forregistration that is not accompanied by satisfactory evidenceof United States citizenship.” Ariz. Rev. Stat. Ann. § 16–
166(F) (West Cum. Supp. 2012). The proof-of-citizenship requirement is satisfed by (1) a photocopy of the applicant's
passport or birth certifcate, (2) a driver's license number, if
the license states that the issuing authority verifed the holder's U. S. citizenship, (3) evidence of naturalization, (4) tribal
identifcation, or (5) “[o]ther documents or methods of proof. . . established pursuant to the Immigration Reform andControl Act of 1986.” Ibid. The EAC did not grant Arizona's request to include this new requirement among thestate-specifc instructions for Arizona on the Federal Form.
App. 225. Consequently, the Federal Form includes a statutorily required attestation, subscribed to under penalty of
2

In May 2005, the United States Attorney General precleared under § 5of the Voting Rights Act of 1965 the procedures Arizona adopted to implement Proposition 200. Purcell, 549 U. S., at 3.

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Opinion of the Court

perjury, that an Arizona applicant meets the State's voting
requirements (including the citizenship requirement), see§ 1973gg–7(b)(2), but does not require concrete evidence of
citizenship.
The two groups of plaintiffs represented here—a group ofindividual Arizona residents (dubbed the Gonzalez plaintiffs,
after lead plaintiff Jesus Gonzalez) and a group of nonproftorganizations led by the Inter Tribal Council of Arizona(ITCA)—fled separate suits seeking to enjoin the voting
provisions of Proposition 200. The District Court consolidated the cases and denied the plaintiffs' motions for a preliminary injunction. App. to Pet. for Cert. 1g. A twojudge motions panel of the Court of Appeals for the Ninth
Circuit then enjoined Proposition 200 pending appeal. Purcell, 549 U. S., at 3. We vacated that order and allowed theimpending 2006 election to proceed with the new rules inplace. Id., at 5–6. On remand, the Court of Appeals affrmed the District Court's initial denial of a preliminary injunction as to respondents' claim that the NVRA pre-empts
Proposition 200's registration rules. Gonzales v. Arizona,
485 F. 3d 1041, 1050–1051 (2007). The District Court thengranted Arizona's motion for summary judgment as to thatclaim. App. to Pet. for Cert. 1e, 3e. A panel of the Ninth
Circuit affrmed in part but reversed as relevant here, holding that “Proposition 200's documentary proof of citizenshiprequirement conficts with the NVRA's text, structure, andpurpose.” Gonzales v. Arizona, 624 F. 3d 1162, 1181 (2010).
The en banc Court of Appeals agreed. Gonzalez v. Arizona,
677 F. 3d 383, 403 (2012). We granted certiorari. 568 U. S.
962 (2012).
II
The Elections Clause, Art. I, § 4, cl. 1, provides:“The Times, Places and Manner of holding Elections for
Senators and Representatives, shall be prescribed ineach State by the Legislature thereof; but the Congress

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ARIZONA v. INTER TRIBAL COUNCIL OF ARIZ., INC.
Opinion of the Court

may at any time by Law make or alter such Regulations,
except as to the places of chusing Senators.”
The Clause empowers Congress to pre-empt state regulations governing the “Times, Places and Manner” of holding
congressional elections. The question here is whether thefederal statutory requirement that States “accept and use”
the Federal Form pre-empts Arizona's state-law requirement that offcials “reject” the application of a prospective
voter who submits a completed Federal Form unaccompanied
by documentary evidence of citizenship.
A
The Elections Clause has two functions. Upon the States
it imposes the duty (“shall be prescribed”) to prescribe thetime, place, and manner of electing Representatives and Senators; upon Congress it confers the power to alter those regulations or supplant them altogether. See U. S. Term Limits, Inc. v. Thornton, 514 U. S. 779, 804–805 (1995); id., at 862(Thomas, J., dissenting). This grant of congressional power
was the Framers' insurance against the possibility that aState would refuse to provide for the election of representatives to the Federal Congress. “[E]very government ought
to contain in itself the means of its own preservation,” and“an exclusive power of regulating elections for the national
government, in the hands of the State legislatures, would
leave the existence of the Union entirely at their mercy.
They could at any moment annihilate it by neglecting toprovide for the choice of persons to administer its affairs.”
The Federalist No. 59, pp. 362–363 (C. Rossiter ed. 1961)(A. Hamilton) (emphasis deleted). That prospect seems fanciful today, but the widespread, vociferous opposition to the
proposed Constitution made it a very real concern in thefounding era.
The Clause's substantive scope is broad. “Times, Places,and Manner,” we have written, are “comprehensive words,”
which “embrace authority to provide a complete code for con-

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Opinion of the Court

gressional elections,” including, as relevant here and as petitioners do not contest, regulations relating to “registration.”
Smiley v. Holm, 285 U. S. 355, 366 (1932); see also Roudebush v. Hartke, 405 U. S. 15, 24–25 (1972) (recounts); UnitedStates v. Classic, 313 U. S. 299, 320 (1941) (primaries). In
practice, the Clause functions as “a default provision; it invests the States with responsibility for the mechanics of congressional elections, but only so far as Congress declines topre-empt state legislative choices.” Foster v. Love, 522 U. S.
67, 69 (1997) (citation omitted). The power of Congress overthe “Times, Places and Manner” of congressional elections“is paramount, and may be exercised at any time, and to any
extent which it deems expedient; and so far as it is exercised,and no farther, the regulations effected supersede those of
the State which are inconsistent therewith.” Ex parte Siebold, 100 U. S. 371, 392 (1880).
B
The straightforward textual question here is whether
Ariz. Rev. Stat. Ann. § 16–166(F), which requires state offcials to “reject” a Federal Form unaccompanied by documentary evidence of citizenship, conficts with the NVRA's mandate that Arizona “accept and use” the Federal Form. If so,
the state law, “so far as the confict extends, ceases tobe operative.” Siebold, supra, at 384. In Arizona's view,
these seemingly incompatible obligations can be read to operate harmoniously: The NVRA, it contends, requires merelythat a State receive the Federal Form willingly and use thatform as one element in its (perhaps lengthy) transaction witha prospective voter.
Taken in isolation, the mandate that a State “accept anduse” the Federal Form is fairly susceptible of two interpretations. It might mean that a State must accept the Federal Form as a complete and suffcient registration application; or it might mean that the State is merely required toreceive the form willingly and use it somehow in its voter-

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ARIZONA v. INTER TRIBAL COUNCIL OF ARIZ., INC.
Opinion of the Court

registration process. Both readings—“receive willingly”
and “accept as suffcient”—are compatible with the plain
meaning of the word “accept.” See 1 Oxford English Dictionary 70 (2d ed. 1989) (“To take or receive (a thing offered)willingly”; “To receive as suffcient or adequate”); Webster's
New International Dictionary 14 (2d ed. 1954) (“To receive(a thing offered to or thrust upon one) with a consentingmind”; “To receive with favor; to approve”). And we takeit as self-evident that the “elastic” verb “use,” read in isolation, is broad enough to encompass Arizona's preferred construction. Smith v. United States, 508 U. S. 223, 241 (1993)(Scalia, J., dissenting). In common parlance, one might saythat a restaurant accepts and uses credit cards even though
it requires customers to show matching identifcation when
making a purchase. See also Brief for State Petitioners 40(“An airline may advertise that it `accepts and uses' e-tickets. . . , yet may still require photo identifcation before one
could board the airplane”).
“Words that can have more than one meaning are given
content, however, by their surroundings.” Whitman v.
American Trucking Assns., Inc., 531 U. S. 457, 466 (2001);
see also Smith, supra, at 241 (Scalia, J., dissenting). And
reading “accept” merely to denote willing receipt seems outof place in the context of an offcial mandate to accept anduse something for a given purpose. The implication of sucha mandate is that its object is to be accepted as suffcientfor the requirement it is meant to satisfy. For example, agovernment diktat that “civil servants shall accept government IOUs for payment of salaries” does not invite the response, “sure, we'll accept IOUs—if you pay us a ten percent
down payment in cash.” Many federal statutes contain similarly phrased commands, and they contemplate more thanmere willing receipt. See, e. g., 5 U. S. C. § 8332(b), (m)(3)(“The Offce [of Personnel Management] shall accept thecertification of ” various officials concerning creditable
service toward civilian-employee retirement); 12 U. S. C.

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Opinion of the Court§ 2605(l)(2) (“A servicer of a federally related mortgage shallaccept any reasonable form of written confrmation froma borrower of existing insurance coverage”); 16 U. S. C.
§ 1536(p) (Endangered Species Committee “shall accept thedeterminations of the President” with respect to whether amajor disaster warrants an exception to the Endangered
Species Act's requirements); § 4026(b)(2), 118 Stat. 3725, notefollowing 22 U. S. C. § 2751, p. 925 (FAA Administrator “shallaccept the certifcation of the Department of Homeland Security that a missile defense system is effective and functional
to defend commercial aircraft against” man-portable surfaceto-air missiles); 25 U. S. C. § 1300h–6(a) (“For the purpose ofproceeding with the per capita distribution” of certain funds,“the Secretary of the Interior shall accept the tribe's certifcation of enrolled membership”); 30 U. S. C. § 923(b) (the Secretary of Labor “shall accept a board certifed or board eligible radiologist's interpretation” of a chest X ray used todiagnose black lung disease); 42 U. S. C. § 1395w–21(e)(6)(A)(“[A] Medicare+Choice organization . . . shall accept elections
or changes to elections during” specifed periods).3
Arizona's reading is also diffcult to reconcile with neighboring provisions of the NVRA. Section 1973gg–6(a)(1)(B)
provides that a State shall “ensure that any eligible applicant
is registered to vote in an election . . . if the valid voter
registration form of the applicant is postmarked” not later
than a specifed number of days before the election. (Emphasis added.) Yet Arizona reads the phrase “accept anduse” in § 1973gg–4(a)(1) as permitting it to reject a completed
3
The dissent accepts that a State may not impose additional requirements that render the Federal Form entirely superfuous; it would requirethat the State “us[e] the form as a meaningful part of the registration
process.” Post, at 44 (opinion of Alito, J.). The dissent does not tell us
precisely how large a role for the Federal Form suffces to make it “meaningful”: One step out of two? Three? Ten? There is no easy answer,
for the dissent's “meaningful part” standard is as indeterminate as it is
atextual.

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ARIZONA v. INTER TRIBAL COUNCIL OF ARIZ., INC.
Opinion of the Court

Federal Form if the applicant does not submit additional information required by state law. That reading can besquared with Arizona's obligation under § 1973gg–6(a)(1) only
if a completed Federal Form is not a “valid voter registration
form,” which seems unlikely. The statute empowers the
EAC to create the Federal Form, § 1973gg–7(a), requires the
EAC to prescribe its contents within specified limits,§ 1973gg–7(b), and requires States to “accept and use” it,§ 1973gg–4(a)(1). It is improbable that the statute envisions
a completed copy of the form it takes such pains to create as
being anything less than “valid.”
The Act also authorizes States, “[i]n addition to accepting and using the” Federal Form, to create their own,
state-specifc voter-registration forms, which can be used toregister voters in both state and federal elections. § 1973gg–
4(a)(2) (emphasis added). These state-developed forms may
require information the Federal Form does not. (For example, unlike the Federal Form, Arizona's registration form
includes Proposition 200's proof-of-citizenship requirement.
See Arizona Voter Registration Form, p. 1, online at http://
www.azsos.gov.) This permission works in tandem with therequirement that States “accept and use” the Federal Form.
States retain the fexibility to design and use their own registration forms, but the Federal Form provides a backstop:
No matter what procedural hurdles a State's own form imposes, the Federal Form guarantees that a simple means ofregistering to vote in federal elections will be available.4
4

In the face of this straightforward explanation, the dissent maintains
that it would be “nonsensical” for a less demanding federal form to exist
alongside a more demanding state form. Post, at 46 (opinion of Alito,J.). But it is the dissent's alternative explanation for § 1973gg–4(a)(2) thatmakes no sense. The “purpose” of the Federal Form, it claims, is “tofacilitate interstate voter registration drives. Thanks to the federal form,
volunteers distributing voter registration materials at a shopping mall in
Yuma can give a copy of the same form to every person they meet without
attempting to distinguish between residents of Arizona and California.”
Post, at 46. But in the dissent's world, a volunteer in Yuma would have togive every prospective voter not only a Federal Form, but also a separate

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Opinion of the Court

Arizona's reading would permit a State to demand of Federal
Form applicants every additional piece of information theState requires on its state-specifc form. If that is so, theFederal Form ceases to perform any meaningful function,
and would be a feeble means of “increas[ing] the number of
eligible citizens who register to vote in elections for Federal
offce.” § 1973gg(b).
Finally, Arizona appeals to the presumption against preemption sometimes invoked in our Supremacy Clause cases.
See, e. g., Gregory v. Ashcroft, 501 U. S. 452, 460–461 (1991).
Where it applies, “we start with the assumption that thehistoric police powers of the States were not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress.” Rice v. Santa Fe Elevator Corp.,
331 U. S. 218, 230 (1947). That rule of construction rests onan assumption about congressional intent: that “Congress
does not exercise lightly” the “extraordinary power” to “legislate in areas traditionally regulated by the States.” Gregory, supra, at 460. We have never mentioned such a principle in our Elections Clause cases.5 Siebold, for example,
set of either Arizona- or California-specifc instructions detailing the additional information the applicant must submit to the State. In ours, every
eligible voter can be assured that if he does what the Federal Form says,
he will be registered. The dissent therefore provides yet another compelling reason to interpret the statute our way.
5
United States v. Gradwell, 243 U. S. 476 (1917), on which the dissent
relies, see post, at 40, n. 1 (opinion of Alito, J.), is not to the contrary—indeed, it was not even a pre-emption case. In Gradwell, we held that astatute making it a federal crime “to defraud the United States” did notreach election fraud. 243 U. S., at 480, 483. The Court noted that theprovision at issue was adopted in a tax-enforcement bill, and that Congress had enacted but then repealed other criminal statutes specifcallycovering election fraud. Id., at 481–483.
The dissent cherry-picks some language from a sentence in Gradwell,
see post, at 40, but the full sentence reveals its irrelevance to our case:“With it thus clearly established that the policy of Congress for so greata part of our constitutional life has been, and now is, to leave the conductof the election of its members to state laws, administered by state offcers,
and that whenever it has assumed to regulate such elections it has done

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Opinion of the Court

simply said that Elections Clause legislation, “so far as it
extends and conficts with the regulations of the State, necessarily supersedes them.” 100 U. S., at 384. There is goodreason for treating Elections Clause legislation differently:
The assumption that Congress is reluctant to pre-empt does
not hold when Congress acts under that constitutional provision, which empowers Congress to “make or alter” stateelection regulations. Art. I, § 4, cl. 1. When Congress legislates with respect to the “Times, Places and Manner” ofholding congressional elections, it necessarily displaces someelement of a pre-existing legal regime erected by the States.6
Because the power the Elections Clause confers is noneother than the power to pre-empt, the reasonable assumption
is that the statutory text accurately communicates the scopeof Congress's pre-emptive intent. Moreover, the federalism
concerns underlying the presumption in the Supremacy
Clause context are somewhat weaker here. Unlike theStates' “historic police powers,” Rice, supra, at 230, theso by positive and clear statutes, such as were enacted in 1870, it would
be a strained and unreasonable construction to apply to such elections this§ 37, originally a law for the protection of the revenue and for now ffty
years confned in its application to `Offenses against the Operations of theGovernment' as distinguished from the processes by which men are selected to conduct such operations.” 243 U. S., at 485.
Gradwell says nothing at all about pre-emption, or about how to construe statutes (like the NVRA) in which Congress has indisputably undertaken “to regulate such elections.” Ibid.
6
The dissent counters that this is so “whenever Congress legislates inan area of concurrent state and federal power.” Post, at 42 (opinion of
Alito, J.). True, but irrelevant: Elections Clause legislation is uniqueprecisely because it always falls within an area of concurrent state andfederal power. Put differently, all action under the Elections Clause displaces some element of a pre-existing state regulatory regime, because
the text of the Clause confers the power to do exactly (and only) that. By
contrast, even laws enacted under the Commerce Clause (arguably theother enumerated power whose exercise is most likely to trench on state
regulatory authority) will not always implicate concurrent state power—a prohibition on the interstate transport of a commodity, for example.

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Opinion of the Court

States' role in regulating congressional elections—while
weighty and worthy of respect—has always existed subject
to the express qualifcation that it “terminates according tofederal law.” Buckman Co. v. Plaintiffs' Legal Comm., 531
U. S. 341, 347 (2001). In sum, there is no compelling reason
not to read Elections Clause legislation simply to mean what
it says.
We conclude that the fairest reading of the statute is thata state-imposed requirement of evidence of citizenship not
required by the Federal Form is “inconsistent with” the
NVRA's mandate that States “accept and use” the Federal
Form. Siebold, supra, at 397. If this reading prevails, theElections Clause requires that Arizona's rule give way.
We note, however, that 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.” 7 Brief for United States as Amicus Curiae 24. The
NVRA clearly contemplates that not every submitted Federal Form will result in registration. See § 1973gg–7(b)(1)(Federal Form “may require only” information “necessary toenable the appropriate State election offcial to assess theeligibility of the applicant” (emphasis added)); § 1973gg–
6(a)(2) (States must require election offcials to “send noticeto each applicant of the disposition of the application”).
III
Arizona contends, however, that its construction of thephrase “accept and use” is necessary to avoid a confict be7

The dissent seems to think this position of ours incompatible with ourreading of § 1973gg–6(a)(1)(B), which requires a State to “ensure that any
eligible applicant is registered to vote in an election . . . if the valid voter
registration form of the applicant is postmarked” by a certain date. Seepost, at 46–47 (opinion of Alito, J.). What the dissent overlooks is that§ 1973gg–6(a)(1)(B) only requires a State to register an “eligible applicant”
who submits a timely Federal Form. (Emphasis added.)

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ARIZONA v. INTER TRIBAL COUNCIL OF ARIZ., INC.
Opinion of the Court

tween the NVRA and Arizona's constitutional authority toestablish qualifcations (such as citizenship) for voting. Arizona is correct that the Elections Clause empowers Congress
to regulate how federal elections are held, but not who may
vote in them. The Constitution prescribes a straightforward rule for the composition of the federal electorate. Article I, § 2, cl. 1, provides that electors in each State for theHouse of Representatives “shall have the Qualifcations requisite for Electors of the most numerous Branch of the State
Legislature,” and the Seventeenth Amendment adopts thesame criterion for senatorial elections. Cf. also Art. II, § 1,
cl. 2 (“Each State shall appoint, in such Manner as the Legislature thereof may direct,” presidential electors). One cannot read the Elections Clause as treating implicitly whatthese other constitutional provisions regulate explicitly. “Itis diffcult to see how words could be clearer in stating what
Congress can control and what it cannot control. Surely
nothing in these provisions lends itself to the view that voting qualifcations in federal elections are to be set by Congress.” Oregon v. Mitchell, 400 U. S. 112, 210 (1970) (Harlan, J., concurring in part and dissenting in part); see also
U. S. Term Limits, 514 U. S., at 833–834; Tashjian v. Republican Party of Conn., 479 U. S. 208, 231–232 (1986) (Stevens,J., dissenting).88
In Mitchell, the judgment of the Court was that Congress could compel
the States to permit 18-year-olds to vote in federal elections. Of the fve
Justices who concurred in that outcome, only Justice Black was of the viewthat congressional power to prescribe this age qualifcation derived fromthe Elections Clause, 400 U. S., at 119–125, while four Justices relied on
the Fourteenth Amendment, id., at 144 (opinion of Douglas, J.), 231 ( joint
opinion of Brennan, White, and Marshall, JJ.). That result, which lacked
a majority rationale, is of minimal precedential value here. See Seminole
Tribe of Fla. v. Florida, 517 U. S. 44, 66 (1996); Nichols v. United States,
511 U. S. 738, 746 (1994); H. Black, Handbook on the Law of Judicial Precedents 135–136 (1912). Five Justices took the position that the Elections
Clause did not confer upon Congress the power to regulate voter qualifca-

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Opinion of the Court

Prescribing voting qualifcations, therefore, “forms no partof the power to be conferred upon the national government”
by the Elections Clause, which is “expressly restricted to
the regulation of the times, the places, and the manner ofelections.” The Federalist No. 60, at 371 (A. Hamilton); seealso id., No. 52, at 326 (J. Madison). This allocation of authority sprang from the Framers' aversion to concentrated
power. A Congress empowered to regulate the qualifcations of its own electorate, Madison warned, could “by degrees subvert the Constitution.” 2 Records of the Federal
Convention of 1787, p. 250 (M. Farrand rev. 1966). At thesame time, by tying the federal franchise to the state franchise instead of simply placing it within the unfettered discretion of state legislatures, the Framers avoided “render[ing] too dependent on the State governments that branch of
the federal government which ought to be dependent on thepeople alone.” The Federalist No. 52, at 326 (J. Madison).
Since the power to establish voting requirements is of little value without the power to enforce those requirements,
Arizona is correct that it would raise serious constitutional
doubts if a federal statute precluded a State from obtaining
the information necessary to enforce its voter qualifcations.9
tions in federal elections. Mitchell, supra, at 143 (opinion of Douglas, J.),
210 (opinion of Harlan, J.), 288 (opinion of Stewart, J., joined by Burger,
C. J., and Blackmun, J.). (Justices Brennan, White, and Marshall did not
address the Elections Clause.) This last view, which commanded a majority in Mitchell, underlies our analysis here. See also U. S. Term Limits,
514 U. S., at 833. Five Justices also agreed that the Fourteenth Amendment did not empower Congress to impose the 18-year-old-voting mandate. See Mitchell, supra, at 124–130 (opinion of Black, J.), 155 (opinionof Harlan, J.), 293–294 (opinion of Stewart, J.).
9
In their reply brief, petitioners suggest for the frst time that “registration is itself a qualifcation to vote.” Reply Brief for State Petitioners 24(emphasis deleted); see also post, at 23, 37 (opinion of Thomas, J.); cf. Voting
Rights Coalition v. Wilson, 60 F. 3d 1411, 1413, and n. 1 (CA9 1995), cert.
denied, 516 U. S. 1093 (1996); Association of Community Organizations
for Reform Now (ACORN) v. Edgar, 56 F. 3d 791, 793 (CA7 1995). We

18

ARIZONA v. INTER TRIBAL COUNCIL OF ARIZ., INC.
Opinion of the Court

If, but for Arizona's interpretation of the “accept and use”
provision, the State would be precluded from obtaining information necessary for enforcement, we would have to determine whether Arizona's interpretation, though plainly not
the best reading, is at least a possible one. Cf. Crowell v.
Benson, 285 U. S. 22, 62 (1932) (the Court will “ascertain
whether a construction of the statute is fairly possible bywhich the [constitutional] question may be avoided” (emphasis added)). Happily, we are spared that necessity, since thestatute provides another means by which Arizona may obtain information needed for enforcement.
Section 1973gg–7(b)(1) of the Act provides that the Federal Form “may require only such identifying information(including the signature of the applicant) and other information (including data relating to previous registration by theapplicant), as is necessary to enable the appropriate State
election offcial to assess the eligibility of the applicant and toadminister voter registration and other parts of the election
process.” At oral argument, the United States expressedthe view that the phrase “may require only” in § 1973gg–
7(b)(1) means that the EAC “shall require information that's
necessary, but may only require that information.” Tr. of
Oral Arg. 52 (emphasis added); see also Brief for ITCA Respondents 46; Tr. of Oral Arg. 37–39 (ITCA Respondents'
counsel). That is to say, § 1973gg–7(b)(1) acts as both a ceiling and a foor with respect to the contents of the Federal
Form. We need not consider the Government's contention
that despite the statute's statement that the EAC “may” require on the Federal Form information “necessary to enable
the appropriate State election offcial to assess the eligibilityof the applicant,” other provisions of the Act indicate thatsuch action is statutorily required. That is because wethink that—by analogy to the rule of statutory interpretaresolve this case on the theory on which it has hitherto been litigated: thatcitizenship (not registration) is the voter qualifcation Arizona seeks to
enforce. See Brief for State Petitioners 50.

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19

Opinion of the Courttion that avoids questionable constitutionality—validly conferred discretionary executive authority is properly exercised (as the Government has proposed) to avoid serious
constitutional doubt. That is to say, it is surely permissible
if not requisite for the Government to say that necessary
information which may be required will be required.
Since, pursuant to the Government's concession, a State
may request that the EAC alter the Federal Form to include
information the State deems necessary to determine eligibility, see § 1973gg–7(a)(2); Tr. of Oral Arg. 55 (United States),and may challenge the EAC's rejection of that request in asuit under the Administrative Procedure Act, see 5 U. S. C.
§§ 701–706, no constitutional doubt is raised by giving the“accept and use” provision of the NVRA its fairest reading.
That alternative means of enforcing its constitutional power
to determine voting qualifcations remains open to Arizonahere. In 2005, the EAC divided 2-to-2 on the request by
Arizona to include the evidence-of-citizenship requirement
among the state-specifc instructions on the Federal Form,
App. 225, which meant that no action could be taken, see 42
U. S. C. § 15328 (“Any action which the Commission is authorized to carry out under this chapter may be carried out
only with the approval of at least three of its members”).
Arizona did not challenge that agency action (or rather inaction) by seeking APA review in federal court, see Tr. of OralArg. 11–12 (Arizona), but we are aware of nothing that prevents Arizona from renewing its request.10 Should the10

We are aware of no rule promulgated by the EAC preventing a renewed request. Indeed, the whole request process appears to be entirely
informal, Arizona's prior request having been submitted by e-mail. See
App. 181.
The EAC currently lacks a quorum—indeed, the Commission has not asingle active Commissioner. If the EAC proves unable to act on a renewed request, Arizona would be free to seek a writ of mandamus to“compel agency action unlawfully withheld or unreasonably delayed.” 5
U. S. C. § 706(1). It is a nice point, which we need not resolve here,
whether a court can compel agency action that the agency itself, for lack

20

ARIZONA v. INTER TRIBAL COUNCIL OF ARIZ., INC.
Opinion of Kennedy, J.

EAC's inaction persist, Arizona would have the opportunity
to establish in a reviewing court that a mere oath will not
suffce 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. See 5 U. S. C. § 706(1). Arizona might also assert (as it has argued here) that it would be arbitrary for the
EAC to refuse to include Arizona's instruction when it has
accepted a similar instruction requested by Louisiana.11***

We hold that 42 U. S. C. § 1973gg–4 precludes Arizona fromrequiring a Federal Form applicant to submit information
beyond that required by the form itself. Arizona may, however, request anew that the EAC include such a requirement
among the Federal Form's state-specifc instructions, andmay seek judicial review of the EAC's decision under the
Administrative Procedure Act.
The judgment of the Court of Appeals is affrmed.
It is so ordered.
Justice Kennedy, concurring in part and concurring in
the judgment.
The opinion for the Court insists on stating a proposition
that, in my respectful view, is unnecessary for the proper
disposition of the case and is incorrect in any event. The
Court concludes that the normal “starting presumption thatof the statutorily required quorum, is incapable of taking. If the answer
to that is no, Arizona might then be in a position to assert a constitutionalright to demand concrete evidence of citizenship apart from the Federal
Form.
11
The EAC recently approved a state-specifc instruction for Louisiana
requiring applicants who lack a Louisiana driver's license, ID card, or Social Security number to attach additional documentation to the completedFederal Form. See National Mail Voter Registration Form, p. 9; Tr. of
Oral Arg. 57 (United States).

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21

Opinion of Kennedy, J.

Congress does not intend to supplant state law,” New YorkState Conference of Blue Cross & Blue Shield Plans v. Travelers Ins. Co., 514 U. S. 645, 654 (1995), does not apply here
because the source of congressional power is the Elections
Clause and not some other provision of the Constitution.
See ante, at 13–15.
There is no sound basis for the Court to rule, for the frst
time, that there exists a hierarchy of federal powers so thatsome statutes pre-empting state law must be interpreted bydifferent rules than others, all depending upon which power
Congress has exercised. If the Court is skeptical of thebasic idea of a presumption against pre-emption as a helpful
instrument of construction in express pre-emption cases, see
Cipollone v. Liggett Group, Inc., 505 U. S. 504, 545 (1992)(Scalia, J., concurring in judgment in part and dissenting
in part), it should say so and apply that skepticism acrossthe board.
There are numerous instances in which Congress, in the
undoubted exercise of its enumerated powers, has stated its
express purpose and intent to pre-empt state law. But the
Court has nonetheless recognized that “when the text of apre-emption clause is susceptible of more than one plausible
reading, courts ordinarily `accept the reading that disfavors
pre-emption.' ” Altria Group, Inc. v. Good, 555 U. S. 70, 77(2008) (quoting Bates v. Dow Agrosciences LLC, 544 U. S.
431, 449 (2005)). This principle is best understood, perhaps,
not as a presumption but as a cautionary principle to ensurethat pre-emption does not go beyond the strict requirementsof the statutory command. The principle has two dimensions: Courts must be careful not to give an unduly broadinterpretation to ambiguous or imprecise language Congress
uses. And they must confne their opinions to avoid overextending a federal statute's pre-emptive reach. Error oneither front may put at risk the validity and effectiveness oflaws that Congress did not intend to disturb and that a Statehas deemed important to its scheme of governance. That

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ARIZONA v. INTER TRIBAL COUNCIL OF ARIZ., INC.
Thomas, J., dissenting

concern is the same regardless of the power Congress invokes, whether it is, say, the commerce power, the war
power, the bankruptcy power, or the power to regulate federal elections under Article I, § 4.
Whether the federal statute concerns congressional regulation of elections or any other subject proper for Congress
to address, a court must not lightly infer a congressional directive to negate the States' otherwise proper exercise of
their sovereign power. This case illustrates the point. The
separate States have a continuing, essential interest in the
integrity and accuracy of the process used to select bothstate and federal offcials. The States pay the costs of holding these elections, which for practical reasons often overlap
so that the two sets of offcials are selected at the same time,on the same ballots, by the same voters. It seems most
doubtful to me to suggest that States have some lesser concern when what is involved is their own historic role in the
conduct of elections. As already noted, it may be that a presumption against pre-emption is not the best formulation ofthis principle, but in all events the State's undoubted interestin the regulation and conduct of elections must be taken into
account and ought not to be deemed by this Court to be a
subject of secondary importance.
Here, in my view, the Court is correct to conclude that the
National Voter Registration Act of 1993 is unambiguous inits pre-emption of Arizona's statute. For this reason, I concur in the judgment and join all of the Court's opinion except
its discussion of the presumption against pre-emption. Seeante, at 13–15.
Justice Thomas, dissenting.
This case involves the federal requirement that States “accept and use,” 42 U. S. C. § 1973gg–4(a)(1), the federal voter
registration form created pursuant to the National Voter
Registration Act (NVRA). The Court interprets “accept
and use,” with minor exceptions, to require States to regis-

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Thomas, J., dissenting

ter any individual who completes and submits the federal
form. It, therefore, holds that § 1973gg–4(a)(1) pre-empts
an Arizona law requiring additional information to register.
As the majority recognizes, ante, at 16–18, its decision implicates a serious constitutional issue—whether Congress has
power to set qualifcations for those who vote in elections forfederal offce.
I do not agree, and I think that both the plain text andthe history of the Voter Qualifcations Clause, U. S. Const.,
Art. I, § 2, cl. 1, and the Seventeenth Amendment authorize
States to determine the qualifcations of voters in federal
elections, which necessarily includes the related power to determine whether those qualifcations are satisfed. To avoid
substantial constitutional problems created by interpreting§ 1973gg–4(a)(1) to permit Congress to effectively countermand this authority, I would construe the law as only requiring Arizona to accept and use the form as part of its voter
registration process, leaving the State free to request whatever additional information it determines is necessary toensure that voters meet the qualifcations it has the constitutional authority to establish. Under this interpretation,
Arizona did “accept and use” the federal form. Accordingly,
there is no confict between Ariz. Rev. Stat. Ann. § 16–166(F)(West Cum. Supp. 2012) and § 1973gg–4(a)(1) and, thus, no
pre-emption.
I
In 2002, Congress created the Election Assistance Commission (EAC), 42 U. S. C. § 15321 et seq., and gave it theongoing responsibility of “develop[ing] a mail voter registration application form for elections for Federal offce” “inconsultation with the chief election offcers of the States.”§ 1973gg–7(a)(2). Under the NVRA, “[e]ach State shall accept and use the mail voter registration application form”
the EAC develops. § 1973gg–4(a)(1). The NVRA also
states in a subsequent provision that “[i]n addition to accepting and using the form described in paragraph (1), a State

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ARIZONA v. INTER TRIBAL COUNCIL OF ARIZ., INC.
Thomas, J., dissenting

may develop and use a mail voter registration form . . . forthe registration of voters in elections for Federal offce” solong as it satisfes the same criteria as the federal form.
§ 1973gg–4(a)(2).
Section 1973gg–7(b) enumerates the criteria for the federal
form. The form “may require only such identifying information . . . and other information . . . as is necessary to enable
the appropriate State election offcial to assess the eligibilityof the applicant.” § 1973gg–7(b)(1). The federal form mustalso “specif[y] each eligibility requirement (including citizenship),” “contai[n] an attestation that the applicant meets eachsuch requirement,” and “requir[e] the signature of the applicant, under penalty of perjury.” §§ 1973gg–7(b)(2)(A)–(C).
Insofar as citizenship is concerned, the standard federal form
contains the bare statutory requirements; individuals seeking to vote need only attest that they are citizens and signunder penalty of perjury.
Arizona has had a citizenship requirement for voting since
it became a State in 1912. See Ariz. Const., Art. VII, § 2.
In 2004, Arizona citizens enacted Proposition 200, the law
at issue in this case. Proposition 200 provides that “[t]hecounty recorder shall reject any application for registrationthat is not accompanied by satisfactory evidence of UnitedStates citizenship.” Ariz. Rev. Stat. Ann. § 16–166(F). The
law sets forth several examples of satisfactory evidence, including driver's license number, birth certifcate, U. S. passport, naturalization documents, and various tribal identifcation documents for Indians. §§ 16–166(F)(1)–(6).
Respondents, joined by the United States, allege thatthese state requirements are pre-empted by the NVRA's
mandate that all States “accept and use” the federal form
promulgated by the EAC. § 1973gg–4(a)(1). They contend
that the phrase “accept and use” requires a State presented
with a completed federal form to register the individual tovote without requiring any additional information.

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Thomas, J., dissenting

Arizona advances an alternative interpretation. It argues that § 1973gg–4(a)(1) is satisfed so long as the State“accept[s] and use[s]” the federal form as part of its voter
qualifcation process. For example, a State “accept[s] anduse[s]” the federal form by allowing individuals to fle it,even if the State requires additional identifying information
to establish citizenship. In Arizona's view, it “accepts anduses” the federal form in the same way that an airline “accepts and uses” electronic tickets but also requires an individual seeking to board a plane to demonstrate that he is the
person named on the ticket. Brief for State Petitioners 40.
See also 677 F. 3d 383, 446 (CA9 2012) (Rawlinson, J., concurring in part and dissenting in part) (“[M]erchants may accept
and use credit cards, but a customer's production of a credit
card in and of itself may not be suffcient. The customer
must sign and may have to provide photo identifcation to
verify that the customer is eligible to use the credit card”).
Justice Alito makes a compelling case that Arizona's interpretation is superior to respondents'. See post, at 44–47(dissenting opinion). At a minimum, however, the interpretations advanced by Arizona and respondents are bothplausible. See 677 F. 3d, at 439 (Kozinski, C. J., concurring) (weighing the arguments). The competing interpretations of § 1973gg–4(a)(1) raise signifcant constitutional
issues concerning Congress' power to decide who may votein federal elections. Accordingly, resolution of this case requires a better understanding of the relevant constitutional
provisions.
IIA
The Voter Qualifcations Clause, U. S. Const., Art. I, § 2,
cl. 1, provides that “the Electors in each State shall have theQualifcations requisite for Electors of the most numerous
Branch of the State Legislature” in elections for the federal

26

ARIZONA v. INTER TRIBAL COUNCIL OF ARIZ., INC.
Thomas, J., dissenting

House of Representatives. The Seventeenth Amendment,
which provides for direct election of Senators, contains an
identical clause. That language is susceptible of only one
interpretation: States have the authority “to control who
may vote in congressional elections” so long as they do not“establish special requirements that do not apply in elections
for the state legislature.” U. S. Term Limits, Inc. v. Thornton, 514 U. S. 779, 864–865 (1995) (Thomas, J., dissenting);
see also The Federalist No. 57, p. 349 (C. Rossiter ed. 2003)(J. Madison) (“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”). Congress has norole in setting voter qualifcations, or determining whether
they are satisfed, aside from the powers conferred by the
Fourteenth, Fifteenth, Nineteenth, Twenty-Fourth, andTwenty-Sixth Amendments, which are not at issue here.
This power is instead expressly reposed in the States.
1
The history of the Voter Qualifcations Clause's enactment
confrms this conclusion. The Framers did not intend toleave voter qualifcations to Congress. Indeed, James Madison explicitly rejected that possibility:“The defnition of the right of suffrage is very justly
regarded as a fundamental article of republican government. It was incumbent on the convention, therefore,
to defne and establish this right in the Constitution.
To have left it open for the occasional regulation of theCongress would have been improper.” The Federalist
No. 52, at 323 (emphasis added).
Congressional legislation of voter qualifcations was not partof the Framers' design.
The Constitutional Convention did recognize a danger inleaving Congress “too dependent on the State governments”
by allowing States to defne congressional elector qualifca-

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Thomas, J., dissenting

tions without limitation. Ibid. To address this concern,
the Committee of Detail that drafted Article I, § 2, “weighed
the possibility of a federal property requirement, as well as
several proposals that would have given the federal government the power to impose its own suffrage laws at somefuture time.” A. Keyssar, The Right To Vote 18 (rev. ed.
2009) (hereinafter Keyssar); see also 2 Records of the Federal Convention of 1787, pp. 139–140, 151, 153, 163–165 (M.
Farrand rev. ed. 1966) (text of several voter qualifcation provisions considered by the Committee of Detail).
These efforts, however, were ultimately abandoned.
Even if the convention had been able to agree on a uniform
federal standard, the Framers knew that state ratifcation
conventions likely would have rejected it. Madison explained that “reduc[ing] the different qualifcations in the different States to one uniform rule would probably have been
as dissatisfactory to some of the States as it would have been
diffcult to the convention.” The Federalist No. 52, at 323;
see also J. Story, Commentaries on the Constitution of theUnited States 217 (abr. ed. 1833) (same). Justice Story elaborated that setting voter qualifcations in the Constitution
could have jeopardized ratifcation, because it would havebeen diffcult to convince States to give up their right to set
voting qualifcations. Id., at 216, 218–219. See also Keyssar 306–313 (Tables A.1 and A.2) (state-by-state analysis of
18th- and 19th-century voter qualifcations, including property, taxpaying, residency, sex, and race requirements).
The Convention, thus, chose to respect the varied statevoting rules and instead struck the balance enshrined in Article I, § 2's requirement that federal electors “shall have theQualifcations requisite for Electors of the most numerous
Branch of the State Legislature.” That compromise gave
States free reign over federal voter qualifcations but protected Congress by prohibiting States from changing thequalifcations for federal electors unless they also alteredqualifcations for their own legislatures. See The Federalist

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ARIZONA v. INTER TRIBAL COUNCIL OF ARIZ., INC.
Thomas, J., dissenting

No. 52, at 323. This balance left the States with nearly complete control over voter qualifcations.
2
Respondents appear to concede that States have the soleauthority to establish voter qualifcations, see, e. g., Brief for
Gonzalez Respondents 63, but nevertheless argue that Congress can determine whether those qualifcations are satisfed. See, e. g., id., at 61. The practical effect of respondents' position is to read Article I, § 2, out of the Constitution.
As the majority correctly recognizes, “the power to establish
voting requirements is of little value without the power toenforce those requirements.” Ante, at 17. For this reason,
the Voter Qualifcations Clause gives States not only the authority to set qualifcations but also the power to verify
whether those qualifcations are satisfed.
This understanding of Article I, § 2, is consistent with powers enjoyed by the States at the founding. For instance,
ownership of real or personal property was a common prerequisite to voting, see Keyssar 306–313 (Tables A.1 andA.2). To verify that this qualifcation was satisfed, Statesmight look to proof of tax payments. See C. Williamson,
American Suffrage From Property to Democracy, 1760–1860,
p. 32 (1960). In other instances, States relied on personal
knowledge of fellow citizens to verify voter eligibility.
Keyssar 24 (“In some locales, particularly in the South, voting was still an oral and public act: men assembled before
election judges, waited for their names to be called, and thenannounced which candidates they supported”). States havealways had the power to ensure that only those qualifed
under state law to cast ballots exercised the franchise.
Perhaps in part because many requirements (such as property ownership or taxpayer status) were independently documented and verifable, States in 1789 did not generally“register” voters using highly formalized procedures. See
id., at 122. Over time, States replaced their informal sys-

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Thomas, J., dissenting

tems for determining eligibility with more formalized prevoting registration regimes. See An Act in Addition to the
Several Acts for Regulating Elections, 1800 Mass. Acts
ch. 74, in Acts and Laws of the Commonwealth of Massachusetts 96 (1897) (Massachusetts' 1801 voter registration law).
But modern voter registration serves the same basic purposeas the practices used by States in the Colonies and earlyFederal Republic. The fact that States have liberalized voting qualifcations and streamlined the verifcation process
through registration does not alter the basic fact that States
possess broad authority to set voter qualifcations and to verify that they are met.
B
Both text and history confrm that States have the exclusive authority to set voter qualifcations and to determine
whether those qualifications are satisfied. The UnitedStates nevertheless argues that Congress has the authority
under Article I, § 4, “to set the rules for voter registrationin federal elections.” Brief for United States as Amicus
Curiae 33 (hereafter Brief for United States). Neither the
text nor the original understanding of Article I, § 4, supportsthat position.
1
Article I, § 4, gives States primary responsibility for regulating the “Times, Places and Manner of holding Elections”
and authorizes Congress to “at any time by Law make oralter such Regulations.” 1 Along with the Seventeenth
Amendment, this provision grants Congress power only overthe “when, where, and how” of holding congressional elections. T. Parsons, Notes of Convention Debates, Jan. 16,
1788, in 6 Documentary History of the Ratifcation of the1
The majority refers to Article I, § 4, cl. 1, as the “Elections Clause.”
See, e. g., ante, at 7. Since there are a number of Clauses in the Constitution dealing with elections, I refer to it using the more descriptive term,Times, Places and Manner Clause.

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ARIZONA v. INTER TRIBAL COUNCIL OF ARIZ., INC.
Thomas, J., dissenting

Constitution 1211 (J. Kaminski & G. Saladino eds. 2000)(hereinafter Documentary History) (Massachusetts ratifcation delegate Sedgwick) (emphasis deleted); see also ante, at
16 (“Arizona is correct that [Article I, § 4,] empowers Congress to regulate how federal elections are held, but not who
may vote in them”).
Prior to the Constitution's ratifcation, the phrase “mannerof election” was commonly used in England, Scotland, Ireland, and North America to describe the entire election process. Natelson, The Original Scope of the Congressional
Power To Regulate Elections, 13 U. Pa. J. Constitutional L.
1, 10–18 (2010) (citing examples). But there are good reasons for concluding that Article I, § 4's use of “Manner”
is considerably more limited. Id., at 20. The Constitution
does not use the word “Manner” in isolation; rather, “after
providing for qualifcations, times, and places, the Constitution described the residuum as `the Manner of holding Elections.' This precise phrase seems to have been newly coined
to denote a subset of traditional `manner' regulation.” Ibid.
(emphasis deleted; footnote omitted). Consistent with thisview, during the state ratifcation debates, the “Manner ofholding Elections” was construed to mean the circumstances
under which elections were held and the mechanics of theactual election. See 4 Debates in the Several State Conventions on the Adoption of the Federal Constitution 71 (J. Elliot
2d ed. 1863) (hereinafter Elliot's Debates) (“The power overthe manner of elections does not include that of saying who
shall vote[;] . . . the power over the manner only enables
them to determine how those electors shall elect—whether
by ballot, or by vote, or by any other way” (John Steele atthe North Carolina ratifcation debates)); A Pennsylvanian to
the New York Convention, Pennsylvania Gazette, June 11,1788, in 20 Documentary History 1145 (J. Kaminski, G. Saladino, R. Leffer, & C. Schoenleber eds. 2004) (same); Brief forCenter for Constitutional Jurisprudence as Amicus Curiae

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Thomas, J., dissenting

6–7 (same, citing state ratifcation debates). The text of theTimes, Places and Manner Clause, therefore, cannot be read toauthorize Congress to dictate voter eligibility to the States.
2
Article I, § 4, also cannot be read to limit a State's authority to set voter qualifcations because the more specifc language of Article I, § 2, expressly gives that authority to theStates. See ante, at 16 (“One cannot read [Article I, § 4,] astreating implicitly what [Article I, § 2, and Article II, § 1,]
regulate explicitly”). As the Court observed just last Term,“[a] well established canon of statutory interpretation succinctly captures the problem: `[I]t is a commonplace of statutory construction that the specifc governs the general.' ”
RadLAX Gateway Hotel, LLC v. Amalgamated Bank, 566
U. S. 639, 645 (2012) (quoting Morales v. Trans World Airlines, Inc., 504 U. S. 374, 384 (1992); second alteration in original). The Court explained that this canon is particularly
relevant where two provisions “ `are interrelated and closely
positioned, both in fact being parts of [the same scheme.]' ”
566 U. S., at 645 (quoting HCSC-Laundry v. United States,
450 U. S. 1, 6 (1981) (per curiam)). Here, the general Times,
Places and Manner Clause is textually limited by the directly
applicable text of the Voter Qualifcation Clause.
The ratifcation debates over the relationship between
Article I, §§ 2 and 4, demonstrate this limitation. Unlike
Article I, § 2, the Times, Places and Manner Clause was the
subject of extensive ratifcation controversy. Antifederalists were deeply concerned with ceding authority over the
conduct of elections to the Federal Government. Some Antifederalists claimed that the “ `wealthy and the well-born' ”
might abuse the Times, Places and Manner Clause to ensure
their continuing power in Congress. The Federalist No. 60,
at 368. Hamilton explained why Article I, § 2's Voter Qualifcations Clause foreclosed this argument:

32

ARIZONA v. INTER TRIBAL COUNCIL OF ARIZ., INC.
Thomas, J., dissenting“The truth is that there is no method of securing to therich the preference apprehended but by prescribing
qualifcations of property either for those who may elector be elected. But this forms no part of the power to be
conferred upon the national government. Its authority
would be expressly restricted to the regulation of thetimes, the places, and the manner of elections.” Id.,
at 369.
Ratifcation debates in several States echoed Hamilton's argument. The North Carolina debates provide a particularly
direct example. There, delegate John Steele relied on theestablished “maxim of universal jurisprudence, of reason andcommon sense, that an instrument or deed of writing shallbe construed as to give validity to all parts of it, if it
can be done without involving any absurdity” in support of
the argument that Article I, § 2's grant of voter qualifcations to the States required a limited reading of Article I,§ 4. 4 Elliot's Debates 71.
This was no isolated view. See 2 id., at 50–51 (Massachusetts delegate Rufus King observing that “the power ofcontrol given by [Article I, § 4,] extends to the manner ofelection, not the qualifcations of the electors”); 4 id., at 61(same, North Carolina's William Davie); 3 id., at 202–203(same, Virginia delegate Edmund Randolph); Roger Sherman, A Citizen of New Haven: Observations on the New
Federal Constitution, Connecticut Courant, Jan. 7, 1788, in
15 Documentary History 282 (J. Kaminski & G. Saladino eds.
1983) (same); A Freeman [Letter] II (Tench Coxe), Pennsylvania Gazette, Jan. 30, 1788, in id., at 508 (same). It waswell understood that congressional power to regulate the“Manner” of elections under Article I, § 4, did not include
the power to override state voter qualifcations under Article I, § 2.
3
The concern that gave rise to Article I, § 4, also supports
this limited reading. The Times, Places and Manner ClauseCite as: 570 U. S. 1 (2013)33

Thomas, J., dissenting

was designed to address the possibility that States mightrefuse to hold any federal elections at all, eliminating Congress, and by extension the Federal Government. As Hamilton explained, “every government ought to contain in itself
the means of its own preservation.” The Federalist No. 59,
at 360 (emphasis deleted); see also U. S. Term Limits, Inc.,
514 U. S., at 863 (Thomas, J., dissenting) (Article I, § 4, designed “to ensure that the States hold congressional elections in the frst place, so that Congress continues to exist”);
id., at 863, and n. 10 (same, citing ratifcation era sources).
Refecting this understanding of the reasoning behind Article I, § 4, many of the original 13 States proposed constitutional amendments that would have strictly cabined theTimes, Places and Manner Clause to situations in which state
failure to hold elections threatened the continued existenceof Congress. See 2 Elliot's Debates 177 (Massachusetts); 18
Documentary History 71–72 (J. Kaminski & G. Saladino
eds. 1995) (South Carolina); id., at 187–188 (New Hampshire);
3 Elliot's Debates 661 (Virginia); Ratifcation of the Constitution by the State of New York (July 26, 1788) (New York),
online at http://avalon.law.yale.edu/18th_century/ratny.asp(all Internet materials as visited June 6, 2013, and available
in Clerk of Court's case fle); 4 Elliot's Debates 249 (North
Carolina); Ratifcation of the Constitution by the State of
Rhode Island (May 29, 1790) (Rhode Island), online at http://
avalon.law.yale.edu/18th_century/ratri.asp. Although theseamendments were never enacted, they underscore how narrowly the ratifcation conventions construed Congress' power
under the Times, Places and Manner Clause. In contrast toa state refusal to hold federal elections at all, a state decision
to alter the qualifcations of electors for state legislature (andthereby for federal elections as well) does not threaten Congress' very existence.
C
Finding no support in the historical record, respondents
and the United States instead chiefy assert that this Court's

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ARIZONA v. INTER TRIBAL COUNCIL OF ARIZ., INC.
Thomas, J., dissenting

precedents involving the Times, Places and Manner Clausegive Congress authority over voter qualifcations. See, e. g.,
Brief for Respondent Inter Tribal Council of Arizona, Inc.
(ITCA), et al. 30–31, 48–50 (hereinafter Brief for ITCA Respondents); Brief for Gonzalez Respondents 44–50; Brief for
United States 24–27, 31–33. But this Court does not havethe power to alter the terms of the Constitution. Moreover,this Court's decisions do not support the respondents' and
the Government's position.
Respondents and the United States point out that Smileyv. Holm, 285 U. S. 355 (1932), mentioned “registration” ina list of voting-related subjects it believed Congress could
regulate under Article I, § 4. Id., at 366 (listing “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 publicationof election returns” (emphasis added)). See Brief for ITCA
Respondents 49; Brief for Gonzalez Respondents 48; Brieffor United States 21. But that statement was dicta because
Smiley involved congressional redistricting, not voter registration. 285 U. S., at 361–362. Cases since Smiley have
similarly not addressed the issue of voter qualifcations but
merely repeated the word “registration” without further
analysis. See Cook v. Gralike, 531 U. S. 510, 523 (2001);
Roudebush v. Hartke, 405 U. S. 15, 24 (1972).
Moreover, in Oregon v. Mitchell, 400 U. S. 112 (1970), a
majority of this Court “took the position that [Article I, § 4,]
did not confer upon Congress the power to regulate voter
qualifcations in federal elections,” as the majority recognizes. Ante, at 16–17, n. 8. See Mitchell, 400 U. S., at 288(Stewart, J., concurring in part and dissenting in part); id.,
at 210–212 (Harlan, J., concurring in part and dissenting inpart); id., at 143 (opinion of Douglas, J.). And even the majority's decision in U. S. Term Limits, from which I dissented, recognized that Madison's Federalist No. 52 “explicitly contrasted the state control over the qualifcations of

Cite as: 570 U. S. 1 (2013)35

Thomas, J., dissenting

electors” with what it believed was “the lack of state control
over the qualifcations of the elected.” 514 U. S., at 806 (emphasis added). Most of the remaining cases cited by respondents and the Government merely confrm that Congress' power to regulate the “Manner of holding Elections”
is limited to regulating events surrounding the when, where,
and how of actually casting ballots. See, e. g., United States
v. Classic, 313 U. S. 299 (1941) (upholding federal regulationof ballot fraud in primary voting); Ex parte Yarbrough, 110
U. S. 651 (1884) (upholding federal penalties for intimidating
voter in congressional election); see also Foster v. Love, 522
U. S. 67 (1997) (overturning Louisiana primary system whose
winner was deemed elected if he received a majority of votes
in light of federal law setting the date of federal generalelections); Roudebush, supra (upholding Indiana ballot recount procedures in close Senate election as within state
power under Article I, § 4). It is, thus, diffcult to maintainthat the Times, Places and Manner Clause gives Congress
power beyond regulating the casting of ballots and related
activities, even as a matter of precedent.2
2

Article I, §§ 2 and 4, and the Seventeenth Amendment concern congressional elections. The NVRA's “accept and use” requirement applies to all
federal elections, even Presidential elections. See § 1973gg–4(a)(1). This
Court has recognized, however, that “the state legislature's power to select the manner for appointing [Presidential] electors is plenary; it may, if
it chooses, select the electors itself.” Bush v. Gore, 531 U. S. 98, 104 (2000)(per curiam) (citing U. S. Const., Art. II, § 1, and McPherson v. Blacker,
146 U. S. 1, 35 (1892)). As late as 1824, six state legislatures chose electoral college delegates, and South Carolina continued to follow this modelthrough the 1860 election. 1 Guide to U. S. Elections 821 (6th ed. 2010).
Legislatures in Florida in 1868 and Colorado in 1876 chose delegates, id.,
at 822, and in recent memory, the Florida Legislature in 2000 convened a
special session to consider how to allocate its 25 electoral votes if thewinner of the popular vote was not determined in time for delegates toparticipate in the electoral college, see James, Election 2000: Florida Legislature Faces Own Disputes Over Electors, Wall Street Journal, Dec. 11,
2000, p. A16, though it ultimately took no action. See Florida's Senate
Adjourns Without Naming Electors, Wall Street Journal, Dec. 15, 2000,

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ARIZONA v. INTER TRIBAL COUNCIL OF ARIZ., INC.
Thomas, J., dissenting

III
A
Arizona has not challenged the constitutionality of the
NVRA itself in this case. Nor has it alleged that Congresslacks authority to direct the EAC to create the federal form.
As a result, I need not address those issues. Arizona did,
however, argue that respondents' interpretation of § 1973gg–
4(a)(1) would raise constitutional concerns. As discussed
supra, I too am concerned that respondents' interpretationof § 1973gg–4(a)(1) would render the statute unconstitutional
under Article I, § 2. Accordingly, I would interpret§ 1973gg–4(a)(1) to avoid the constitutional problems discussed above. See Zadvydas v. Davis, 533 U. S. 678, 689(2001) (“ `[I]t is a cardinal principle' of statutory interpretation, however, that when an Act of Congress raises `a serious
doubt' as to its constitutionality, `this Court will frst ascertain whether a construction of the statute is fairly possible
by which the question may be avoided' ” (quoting Crowell v.
Benson, 285 U. S. 22, 62 (1932))).
I cannot, therefore, adopt the Court's interpretation that§ 1973gg–4(a)(1)'s “accept and use” provision requires States
to register anyone who completes and submits the form.
Arizona sets citizenship as a qualifcation to vote, and it
wishes to verify citizenship, as it is authorized to do under
Article 1, § 2. It matters not whether the United States has
specifed one way in which it believes Arizona might beable to verify citizenship; Arizona has the independent constitutional authority to verify citizenship in the way it deems
necessary. See Part II–A–2, supra. By requiring Arizonato register people who have not demonstrated to Arizona's
satisfaction that they meet its citizenship qualifcation forvoting, the NVRA, as interpreted by the Court, would exp. A6. Constitutional avoidance is especially appropriate in this area because the NVRA purports to regulate Presidential elections, an area overwhich the Constitution gives Congress no authority whatsoever.

Cite as: 570 U. S. 1 (2013)37

Thomas, J., dissenting

ceed Congress' powers under Article I, § 4, and violate Article 1, § 2.
Fortunately, Arizona's alternative interpretation of§ 1973gg–4(a)(1) avoids this problem. It is plausible that Arizona “accept[s] and use[s]” the federal form under § 1973gg–
4(a)(1) so long as it receives the form and considers it as partof its voter application process. See post, at 44–47 (Alito, J.,dissenting); 677 F. 3d, at 444 (Rawlinson, J., concurring inpart and dissenting in part); 624 F. 3d 1162, 1205–1208 (CA92010) (Kozinski, C. J., dissenting in part), reh'g en bancgranted, 649 F. 3d 953 (2011); 677 F. 3d, at 439 (Kozinski,
C. J., concurring) (same). Given States' exclusive authority
to set voter qualifcations and to determine whether thosequalifcations are met, I would hold that Arizona may request whatever additional information it requires to verify
voter eligibility.
B
The majority purports to avoid the diffcult constitutionalquestions implicated by the Voter Qualifcations Clause.
See ante, at 16–18. It nevertheless adopts respondents'
reading of § 1973gg–4(a)(1) because it interprets Article I,§ 2, as giving Arizona the right only to “obtai[n] information necessary for enforcement” of its voting qualifcations.
Ante, at 18. The majority posits that Arizona may pursue
relief by making an administrative request to the EAC that,
if denied, could be challenged under the Administrative Procedure Act (APA). Ante, at 18–20.
Justice Alito is correct to point out that the majority's
reliance on the EAC is meaningless because the EAC has nomembers and no current prospects of new members. Post,
at 43 (dissenting opinion). Offering a nonexistent pathway
to administrative relief is an exercise in futility, not constitutional avoidance.
Even if the EAC were a going concern instead of an empty
shell, I disagree with the majority's application of the constitutional avoidance canon. I would not require Arizona to38

ARIZONA v. INTER TRIBAL COUNCIL OF ARIZ., INC.
Alito, J., dissenting

seek approval for its registration requirements from theFederal Government, for, as I have shown, the Federal Government does not have the constitutional authority to withhold such approval. Accordingly, it does not have the authority to command States to seek it. As a result, themajority's proposed solution does little to avoid the serious
constitutional problems created by its interpretation.
***

Instead of adopting respondents' defnition of “accept anduse” and offering Arizona the dubious recourse of bringing
an APA challenge within the NVRA framework, I would
adopt an interpretation of § 1973gg–4(a)(1) that avoids theconstitutional problems with respondents' interpretation.
The States, not the Federal Government, have the exclusive
right to defne the “Qualifcations requisite for Electors,”
U. S. Const., Art. I, § 2, cl. 1, which includes the corresponding power to verify that those qualifcations have been met.
I would, therefore, hold that Arizona may “reject any application for registration that is not accompanied by satisfactory evidence of United States citizenship,” as defned by
Arizona law. Ariz. Rev. Stat. Ann. § 16–166(F).
I respectfully dissent.
Justice Alito, dissenting.
The Court reads an ambiguous federal statute in a waythat brushes aside the constitutional authority of the Statesand produces truly strange results.
Under the Constitution, the States, not Congress, have theauthority to establish the qualifcations of voters in electionsfor Members of Congress. See Art. I, § 2, cl. 1 (House);
Amdt. 17 (Senate). The States also have the default authority to regulate federal voter registration. See Art. I, § 4,
cl. 1. Exercising its right to set federal voter qualifcations,Arizona, like every other State, permits only U. S. citizens
to vote in federal elections, and Arizona has concluded that

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39

Alito, J., dissenting

this requirement cannot be effectively enforced unless applicants for registration are required to provide proof of citizenship. According to the Court, however, the National Voter
Registration Act of 1993 (NVRA) deprives Arizona of
this authority. I do not think that this is what Congress
intended.
I also doubt that Congress meant for the success of an
application for voter registration to depend on which of two
valid but substantially different registration forms the applicant happens to fll out and submit, but that is how the Court
reads the NVRA. The Court interprets one provision, 42
U. S. C. § 1973gg–6(a)(1)(B), to mean that, if an applicant flls
out the federal form, a State must register the applicant
without requiring proof of citizenship. But the Court does
not question Arizona's authority under another provision of
the NVRA, § 1973gg–4(a)(2), to create its own application
form that demands proof of citizenship; nor does the Court
dispute Arizona's right to refuse to register an applicant who
submits that form without the requisite proof. I fnd it very
hard to believe that this is what Congress had in mind.
These results are not required by the NVRA. Proper respect for the constitutional authority of the States demands
a clear indication of a congressional intent to pre-empt statelaws enforcing voter qualifcations. And while the relevant
provisions of the NVRA are hardly models of clarity, theirbest reading is that the States need not treat the federal
form as a complete voter registration application.
IA
In light of the States' authority under the Elections Clauseof the Constitution, Art. I, § 4, cl. 1, I would begin by applying a presumption against pre-emption of the Arizona law
requiring voter registration applicants to submit proof of citizenship. Under the Elections Clause, the States have theauthority to specify the times, places, and manner of federal

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ARIZONA v. INTER TRIBAL COUNCIL OF ARIZ., INC.
Alito, J., dissenting

elections except to the extent that Congress chooses to provide otherwise. And in recognition of this allocation of authority, it is appropriate to presume that the States retain
this authority unless Congress has clearly manifested a contrary intent. The Court states that “[w]e have never mentioned [the presumption against pre-emption] in our Elections Clause cases,” ante, at 13, but in United States v.
Gradwell, 243 U. S. 476 (1917), we read a federal statute narrowly out of deference to the States' traditional authority
in this area. In doing so, we explained that “the policy ofCongress for [a] great . . . part of our constitutional life has
been . . . to leave the conduct of the election of its members
to state laws, administered by state offcers, and that whenever it has assumed to regulate such elections it has done
so by positive and clear statutes.” Id., at 485 (emphasis
added).1 The presumption against pre-emption applies withfull force when Congress legislates in a “feld which theStates have traditionally occupied,” Rice v. Santa Fe Elevator Corp., 331 U. S. 218, 230 (1947), and the NVRA wasthe frst signifcant federal regulation of voter registration
enacted under the Elections Clause since Reconstruction.
The Court has it exactly backwards when it declines toapply the presumption against pre-emption because “the federalism concerns underlying the presumption in the Supremacy Clause context are somewhat weaker” in an Elections
Clause case like this one. Ante, at 14. To the contrary, Arizona has a “ `compelling interest in preserving the integrityof its election process' ” that the Constitution recognizes and
1
The Court argues that Gradwell is irrelevant, observing that there wasno state law directly at issue in that case, which concerned a prosecution
under a federal statute. Ante, at 13–14, n. 5. But the same is true ofEx parte Siebold, 100 U. S. 371 (1880), on which the Court relies in thevery next breath. In any event, it is hard to see why a presumption about
the effect of federal law on the conduct of congressional elections shouldhave less force when the federal law is alleged to confict with a state law.
If anything, one would expect the opposite to be true.

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41

Alito, J., dissentingthat the Court's reading of the NVRA seriously undermines.
Purcell v. Gonzalez, 549 U. S. 1, 4 (2006) (per curiam)(quoting Eu v. San Francisco County Democratic Central
Comm., 489 U. S. 214, 231 (1989)).
By reserving to the States default responsibility for administering federal elections, the Elections Clause protects
several critical values that the Court disregards. First, as
Madison explained in defense of the Elections Clause at theVirginia Convention, “[i]t was found necessary to leave theregulation of [federal elections], in the frst place, to the state
governments, as being best acquainted with the situation of
the people.” 3 Records of the Federal Convention of 1787,
p. 312 (M. Farrand ed. 1911). Because the States are closer
to the people, the Framers thought that state regulation offederal elections would “in ordinary cases . . . be both moreconvenient and more satisfactory.” The Federalist No. 59,
p. 363 (C. Rossiter ed. 1961) (A. Hamilton).
Second, as we have previously observed, the integrity offederal elections is a subject over which the States and theFederal Government “are mutually concerned.” Ex parte
Siebold, 100 U. S. 371, 391 (1880). By giving States a role in
the administration of federal elections, the Elections Clauserefects the States' interest in the selection of the individuals
on whom they must rely to represent their interests in the
National Legislature. See U. S. Term Limits, Inc. v. Thornton, 514 U. S. 779, 858–859 (1995) (Thomas, J., dissenting).
Third, the Elections Clause's default rule helps to protect
the States' authority to regulate state and local elections.
As a practical matter, it would be very burdensome for a
State to maintain separate federal and state registration
processes with separate federal and state voter rolls. For
that reason, any federal regulation in this area is likely todisplace not only state control of federal elections but also
state control of state and local elections.
Needless to say, when Congress believes that some overriding national interest justifes federal regulation, it has the

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ARIZONA v. INTER TRIBAL COUNCIL OF ARIZ., INC.
Alito, J., dissenting

power to “make or alter” state laws specifying the “Times,
Places and Manner” of federal elections. Art. I, § 4, cl. 1.
But we should expect Congress to speak clearly when it decides to displace a default rule enshrined in the text of theConstitution that serves such important purposes.
The Court answers that when Congress exercises its
power under the Elections Clause “it necessarily displaces
some element of a pre-existing legal regime erected by theStates.” Ante, at 14. But the same is true whenever Congress legislates in an area of concurrent state and federal
power. A federal law regulating the operation of grain
warehouses, for example, necessarily alters the “pre-existing
legal regime erected by the States,” see Rice, supra, at 229–
230—even if only by regulating an activity the States had
chosen not to constrain.2 In light of Arizona's constitutionally codifed interest in the integrity of its federal elections,“it is incumbent upon the federal courts to be certain” that
Congress intended to pre-empt Arizona's law. AtascaderoState Hospital v. Scanlon, 473 U. S. 234, 243 (1985).
B
The canon of constitutional avoidance also counsels against
the Court's reading of the Act. As the Court acknowledges,
the Constitution reserves for the States the power to decide
who is qualifed to vote in federal elections. Ante, at 15–18;
see Oregon v. Mitchell, 400 U. S. 112, 210–211 (1970) (Harlan,
2

The Court observes that the Commerce Clause, unlike the Elections
Clause, empowers Congress to legislate in areas that do not implicate concurrent state power. Ante, at 14, n. 6. Apparently the Court means thatthe presumption against pre-emption only applies in those unusual cases
in which it is unclear whether a federal statute even touches on subject
matter that the States may regulate under their broad police powers. I
doubt that the Court is prepared to abide by this cramped understandingof the presumption against pre-emption. See, e. g., Hillman v. Maretta,
569 U. S. 483, 490 (2013) (“There is therefore `a presumption against preemption' of state laws governing domestic relations” (quoting Egelhoff v.
Egelhoff, 532 U. S. 141, 151 (2001))).

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43

Alito, J., dissentingJ., concurring in part and dissenting in part). The Court
also recognizes that, although Congress generally has theauthority to regulate the “Times, Places and Manner of holding” such elections, Art. I, § 4, cl. 1, a federal law that frustrates a State's ability to enforce its voter qualifcations
would be constitutionally suspect. Ante, at 17; see ante, at
25–36 (Thomas, J., dissenting). The Court neverthelessreads the NVRA to restrict Arizona's ability to enforce its
law providing that only United States citizens may vote.
See Ariz. Const., Art. VII, § 2. We are normally more reluctant to interpret federal statutes as upsetting “the usual constitutional balance of federal and state powers.” Gregory v.
Ashcroft, 501 U. S. 452, 460 (1991); see Frankfurter, Some
Refections on the Reading of Statutes, 47 Colum. L. Rev.
527, 540 (1947) (“[W]hen the Federal Government . . . radically readjusts the balance of state and national authority,
those charged with the duty of legislating are reasonably
explicit”).
In refusing to give any weight to Arizona's interest in enforcing its voter qualifcations, the Court suggests that theState could return to the Election Assistance Commission
and renew its request for a change to the federal form.
Ante, at 19–20. But that prospect does little to assuage constitutional concerns. The EAC currently has no members,
and there is no reason to believe that it will be restored tolife in the near future. If that situation persists, Arizona's
ability to obtain a judicial resolution of its constitutional
claim is problematic. The most that the Court is preparedto say is that the State “might” succeed by seeking a writof mandamus and, failing that, “might” be able to mounta constitutional challenge. Ante, at 20, n. 10. The Court
sends the State to traverse a veritable procedural obstacle
course in the hope of obtaining a judicial decision on the constitutionality of the relevant provisions of the NVRA. A
sensible interpretation of the NVRA would obviate these
diffculties.

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Alito, J., dissenting

II
The NVRA does not come close to manifesting the clear
intent to pre-empt that we should expect to fnd when Congress has exercised its Elections Clause power in a way thatis constitutionally questionable. Indeed, even if neither thepresumption against pre-emption nor the canon of constitutional avoidance applied, the better reading of the NVRA
would be that Arizona is free to require those who use thefederal form to supplement their applications with proof of
citizenship.
I agree with the Court that the phrase “accept and use,”when read in isolation, is ambiguous, ante, at 9–10, but I
disagree with the Court's conclusion that § 1973gg–4(a)(1)'s
use of that phrase means that a State must treat the federal
form as a complete application and must either grant or denyregistration without requiring that the applicant supply additional information. Instead, I would hold that a State “accept[s] and use[s]” the federal form so long as it uses theform as a meaningful part of the registration process.
The Court begins its analysis of § 1973gg–4(a)(1)'s context
by examining unrelated uses of the word “accept” elsewherein the United States Code. Ante, at 10–11. But a better
place to start is to ask what it normally means to “accept
and use” an application form. When the phrase is used inthat context, it is clear that an organization can “accept
and use” a form that it does not treat as a complete application. For example, many colleges and universities
accept and use the Common Application for Undergraduate
College Admission but also require that applicants submit various additional forms or documents. See Common Application, 2012–2013 College Deadlines, Fees, andRequirements, https://www.commonapp.org/CommonApp/
MemberRequirements.aspx (all Internet materials as visitedJune 10, 2013, and available in Clerk of Court's case fle).
Similarly, the Social Security Administration undoubtedly“accepts and uses” its Social Security card application form

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Alito, J., dissenting

even though someone applying for a card must also provethat he or she is a citizen or has a qualifying immigration
status. See Application for a Social Security Card, Form
SS–5 (2011), http://www.socialsecurity.gov/online/ss-5.pdf.
As such examples illustrate, when an organization says thatit “accepts and uses” an application form, it does not necessarily mean that the form constitutes a complete application.
That is not to say that the phrase “accept and use” ismeaningless when issued as a “government diktat” in§ 1973gg–4(a)(1). Ante, at 10. Arizona could not be said to“accept and use” the federal form if it required applicants
who submit that form to provide all the same information asecond time on a separate state form. But Arizona doesnothing of the kind. To the contrary, the entire basis forrespondents' suit is that Proposition 200 mandates thatapplicants provide information that does not appear on aa completed federal form. Although § 1973gg–4(a)(1) prohibits States from requiring applicants who use the federal form to submit a duplicative state form, nothing in thatprovision's text prevents Arizona from insisting that federal
form applicants supplement their applications with additional information.
That understanding of § 1973gg–4(a)(1) is confrmed by§ 1973gg–4(a)(2), which allows States to design and use theirown voter registration forms “[i]n addition to accepting andusing” the federal form. The NVRA clearly permits States
to require proof of citizenship on their own forms, see§§ 1973gg–4(a)(2) and 1973gg–7(b)—a step that Arizona hastaken and that today's decision does not disturb. Thus,
under the Court's approach, whether someone can register
to vote in Arizona without providing proof of citizenship will
depend on the happenstance of which of two alternative
forms the applicant completes. That could not possibly bewhat Congress intended; it is as if the Internal Revenue
Service issued two sets of personal income tax forms withdifferent tax rates.

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Alito, J., dissenting

We could avoid this nonsensical result by holding that the
NVRA lets the States decide for themselves what information “is necessary . . . to assess the eligibility of the applicant”—both by designing their own forms and by requiringthat federal form applicants provide supplemental information when appropriate. § 1973gg–7(b)(1). The Act's provision for state forms shows that the purpose of the federal
form is not to supplant the States' authority in this area but
to facilitate interstate voter registration drives. Thanks to
the federal form, volunteers distributing voter registrationmaterials at a shopping mall in Yuma can give a copy of thesame form to every person they meet without attempting todistinguish between residents of Arizona and California.
See H. R. Rep. No. 103–9, p. 10 (1993) (“Uniform mail forms
will permit voter registration drives through a regional or
national mailing, or for more than one State at a central location, such as a city where persons from a number of neighboring States work, shop or attend events”). The federal
form was meant to facilitate voter registration drives, not totake away the States' traditional authority to decide what
information registrants must supply.3
The Court purports to fnd support for its contrary approach in § 1973gg–6(a)(1)(B), which says that a State must“ensure that any eligible applicant is registered to vote in anelection . . . if the valid voter registration form of the applicant is postmarked” within a specifed period. Ante, at
11–12. The Court understands § 1973gg–6(a)(1)(B) to meanthat a State must register an eligible applicant if he or she
submits a “ `valid voter registration form.' ” Ante, at 12.
But when read in context, that provision simply identifes the
3

The Court argues that the federal form would not accomplish this purpose under my interpretation because “a volunteer in Yuma would haveto give every prospective voter not only a Federal Form, but also a separate set of either Arizona- or California-specifc instructions.” Ante, at
12, n. 4. But this is exactly what Congress envisioned. Eighteen of thefederal form's 23 pages are state-specifc instructions.

Cite as: 570 U. S. 1 (2013)

47

Alito, J., dissenting

time within which a State must process registration applications; it says nothing about whether a State may require thesubmission of supplemental information. The Court's more
expansive interpretation of § 1973gg–6(a)(1)(B) sneaks in aqualifcation that is nowhere to be found in the text. The
Court takes pains to say that a State need not register anapplicant who properly completes and submits a federal form
but is known by the State to be ineligible. See ante, at 15.
But the Court takes the position that a State may not demand that an applicant supply any additional information toconfrm voting eligibility. Nothing in § 1973gg–6(a)(1)(B)
supports this distinction.
What is a State to do if it has reason to doubt an applicant's eligibility but cannot be sure that the applicant is ineligible? Must the State either grant or deny registration
without communicating with the applicant? Or does the
Court believe that a State may ask for additional information
in individual cases but may not impose a categorical requirement for all applicants? If that is the Court's position, on
which provision of the NVRA does it rely? The Court's
reading of § 1973gg–6(a)(1)(B) is atextual and makes little
sense.
***
Properly interpreted, the NVRA permits Arizona to require applicants for federal voter registration to provide
proof of eligibility. I therefore respectfully dissent.