Make what you will of Judge Melgren’s analysis of preemption, or the hints of his constitutional stance on the federal-state balance of authority under the Elections Clause—his decision in Kobach v. The United States Election Assistance Commission is a mechanical exercise that leaves the reader without any sense of what this case is about. Kansas and Arizona have not merely made a “determination” of what they need to verify the citizenship of state residents seeking to become voters. The history behind this litigation is more complex, with more history to it, and the court knew it.  It chose, however, to follow example of the Supreme Court and to do as the High Court has done in other cases, like Purcell v. Gonzalez and Crawford v. Marion County, and leave the real world out.

Some might say that the Supreme Court is bound to disregard the politics behind these cases and train its eye on the “law” alone.  But the Justices’ fidelity to this proposition is mixed.  Justice Scalia, for example, has enlivened his constitutional position on campaign finance doctrine with references to the history of incumbent manipulation of the campaign finance laws—including evidence of political mischief that he found quite compelling in the very case under review. McConnell v. Federal Election Commission, 540 U.S. 93, 260  (2003) (“But let us not be deceived. There is good reason to believe the ending of negative campaigns was the principal attraction of the legislation.”) His view of the  constitutional question was inseparable from context—from an inquiry into what might “really be going on.” The motivation behind restrictions enacted in the name of reform, and the disingenuousness of the policy justifications legislators offered, were confronted explicitly in his analysis.  This not the only example to be found in these cases.  See Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett, 131 S. Ct. 2806, 2825 (2011) (noting how the State revised its website after oral argument to change the statement of its legislative purpose in the enactment of a public financing statute).

But nothing like this skepticism is displayed toward official justifications of the proof-of-citizenship requirements  in Arizona v. Inter Tribal Council of Arizona, Inc., 133 S. Ct. 2247 (2013), and now in  Kobach. For all one knows in reading Justice Scalia’s analysis in Inter Tribal Council, Kansas and Arizona just happened to enact simple enforcement procedures against non-citizen voting; nothing in the world at large, within their states or elsewhere in the national political conflicts over voting rights, is allowed to shed light on their purposes.  At stake is only and simply the constitutional allocation of federal and state authority over elections.

The District Court in Kobach covered its eyes in like fashion. This is most evident in its review of the States’ “determination” that proof of citizenship documentation was needed to verify eligibility.  The question was whether they could show that “a mere oath will not suffice to effectuate [their] citizenship requirement[s] and that the EAC is therefore under a nondiscretionary duty to include Arizona’s concrete evidence requirement on the Federal Form.” Inter Tribal Council at 2260.  Judge Melgren decided that it was enough that the states just said so—that their legislatures had enacted these requirements. The states’ decision to do what they did was the “determination”: the determination was the action, and the action was all that was needed.  So the Court  denied  the EAC discretion to refuse the incorporation of this requirement into the federal form.

This is a confused bit of reasoning, as Derek Muller has pointed out.  The Court does not contend with the weak evidence of necessity that the states had produced for the EAC  (see Memorandum of Decision (Docket No. EAC-2013-0004) at 31-36) or with the EAC conclusion that other means of enforcement adequately served the state’s enforcement program.  Id. at 36-41.  The State was required to do no more than assert its policy preference—a preference not to be confused with a need—and with that,  the Court’s work was done.

The judicial product fashioned from these materials is lifeless—not a stirring in it of the live controversy in the background, or of the thousands of Kansans caught up in this conflict and unable to register to vote. Maybe the outcome would have been the same had this history been brought to the foreground. If there are arguments on both sides,  as Rick Hasen has suggested, then the one the Kobach Court favored might have survived an analysis that was richer in context and wider in perspective. As Linda Greenhouse recently and wisely wrote, in puzzling over the stakes in a property rights case before the Supreme Court, “it would have been nice if the [Court] had given the readers of its opinion a clue that something more was at stake beyond a debate about ‘implied reversionary interests,’ ‘bare common law easements,’ and other principles of property law.”   Same here in Kobach, with appropriate substitution in place of property rights doctrine  of “preemption,” “Elections Clause,” and other principles of constitutional law.

Certainly, in other cases involving rights of political participation, the Supreme Court has, occasionally, shown how the judiciary can closely scrutinize how official power is exercised, looking behind the public reasons given to evidence of other motivation.  But the Court has been selective with this approach, reserving it only for some cases, and Judge Melgren decided that Kobach should not be one of them.