AZ Mirror: SCOTUS: Arizona may require proof of citizenship on state voter forms, at least for now

August 23, 2024

The United States Supreme Court on Thursday ruled that Arizona can enforce part of a voter registration law that is being challenged in federal court, effectively allowing the state to bar legal voters from registering just about 10 weeks before the election. 

In a split decision, the high court handed a win to the Republican National Committee and Arizona legislative leaders Ben Toma, the speaker of the state House of Representatives, and Warren Petersen, the state Senate president. In a 5-4 decision via an unsigned order. The court reinstated a portion of the law that allows the state to stop accepting state-created voter registration forms from Arizona residents unless they provide proof of citizenship. 

The brief order did not explain the reasons for the court’s decision, which is common for emergency rulings. Conservative Justice Amy Coney Barrett sided with the court’s three liberal justices.

“This is a major victory for election integrity that upholds a simple principle: American elections must be decided by American citizens,” RNC Chairman Michael Whatley said in a written statement. “While Democrats have worked to undermine basic election safeguards and make it easier for non-citizens to vote, we have fought tooth and nail to preserve citizenship requirements, see the law enforced, and secure our elections.” 

State law requires people to show proof of citizenship to register to vote, which voters approved as Proposition 200 in 2004. But the federal National Voter Registration Act of 1993 requires states to accept federal voter registration forms, which don’t have a proof-of-citizenship requirement, and the U.S. Supreme Court ruled in 2013 that Arizona can’t reject those forms, despite the disparity between state and federal law on the issue.  

The result is a bifurcated system, in which voters who prove their citizenship can vote in every race, while those who do not — but attest to being citizens under penalty of perjury — can vote only in federal contests.

There are about 32,000 “federal only” voters in Arizona who haven’t provided documented proof of citizenship, and Thursday’s ruling has no effect on their ability to vote. A Votebeat analysis found the contested voter registration law is likely to disproportionately affect younger voters and voters who live on college campuses, who often register to vote without providing documents proving residency or citizenship.

The Arizona law, which was passed by the state legislature in 2022, aimed to stop non-citizens from voting in the state. 

After numerous voting rights groups jointly challenged the Arizona law, a trial court failed to uphold a portion of it that required proof of citizenship for voters to register via a state form, as well as another section that would bar residents who register using a federal form from voting by mail in presidential elections unless they provide proof of citizenship. 

Following the lower court’s Aug. 1 decision, the RNC submitted an emergency application to the U.S. Supreme Court, asking the justices to reinstate those portions of the law. 

The high court declined to reinstate the portion regarding mail-in voting for presidential elections. 

Conservative Justices Clarence Thomas, Samuel Alito and Neil Gorsuch said in the order that they would have granted the RNC’s request in full, while Barrett and the liberal justices — Sonya Sotomayor, Elena Kagan and Ketanji Brown Jackson — said they would have denied the entire request.

Republicans, led by former President Donald Trump, who falsely claims that the 2020 presidential election was stolen from him, allege that voting by noncitizens is a widespread problem across the country. But there is no evidence to back that up, with studies showing that non-citizen voting is exceedingly rare. 

Even so, Arizona has been a hotbed for election denialism, with a failed partisan “audit” of the 2020 election results in Maricopa County, followed by continued claims of election fraud and interference from Republican candidates for office, and even members of the state legislature. 

The Campaign Legal Center, which is representing some of the voting rights groups in the lawsuit, criticized the ruling and its timing in a written statement. 

“We are disappointed that the Supreme Court is upending longstanding rules on the eve of an election that will clearly cause voter confusion,” CLC spokesperson Bruce Spiva said in the statement. “Free and fair elections rely on every citizen being able to cast a ballot and the fight is far from over.” 

The 9th Circuit Court of Appeals is set to hear the case on Sept. 10, but the RNC asked the Supreme Court to rule on the reinstatement issue by Aug. 22, the deadline to print general election ballots in some Arizona counties. 

“If the Court is going to weigh in on eleventh hour election law challenges, it needs to enforce the principle against last minute changes evenhandedly,” attorney Danielle Lang, who is set to argue for the CLC in front of the appeals court, said in a statement. “This decision fails to do that.”  

Arizona Secretary of State Adrian Fontes, a Democrat, issued a statement following the order, saying that counties will now reject new state forms unless they include documented proof of citizenship. 

“My concern is that changes to the process should not occur this close to an election, it creates confusion for voters,” Fontes said. “We respect the Court’s decision and will implement these changes while continuing to protect voter access and make voting a simple process.”

He added that voters can still register using a national mail voter registration form, which requires residents to attest that they are citizens, under penalty of perjury.  

Election expert Rick Hasen, director of the Safeguarding Democracy Project and professor of political science at the University of California, Los Angeles, wrote in a blog post that the law that the high court allowed to be reinstated was “bad and unnecessary.” 

“Unlike voter ID laws, that often have not been shown to have a big effect on turnout, these documentary proof of citizenship laws matter a lot,” Hasen wrote. “They stand to literally disenfranchise thousands of eligible voters for no good reason.”

The Campaign Legal Center wrote that it filed the lawsuit challenging the law on behalf of Native, Latino and student voters, some of whom would be disproportionately impacted by the law. 

The CLC emphasized that election officials in Arizona already have systems in place to verify voter eligibility, and work to ensure the voter rolls are accurate and up to date. 

The Arizona Republican Party celebrated the ruling, saying that it allows the state a crucial right to prevent noncitizens from voting. 

“This is a tremendous victory for every Arizona voter who demands confidence that our elections are protected from non-citizen interference,” AZGOP chairwoman Gina Swoboda said in a written statement. “The Supreme Court’s ruling ensures that Arizona can uphold the integrity of its elections, giving voters the assurance they deserve.”

Our Voice, Our Vote, a progressive advocacy organization, countered the AZGOP in its own statement. 

“This legislation has never been about election integrity—it has always been about spreading the big lie that voter fraud is tilting elections,” the organization’s executive director Sena Mohammed said in a written statement. “Today’s decision is disappointing, but it’s nothing new. The wealthy and well-connected try everything to shut us out of the halls of power, but nothing will stop us from making our voices heard and our votes count.”