Arizona is Daring SCOTUS to Revisit Proof of Citizenship To Register To Vote

By Matt Shuham, Talking Points Memo | April 6, 2022


Last month, staff lawyers in the Arizona legislature informed Republican lawmakers that a new proof-of-citizenship requirement to register to vote blatantly contradicted Supreme Court precedent — precedent made when another Arizona law was checked by the Court just a few years prior.


The legislators said they wanted the fight.


“I think this is a fight worth having,” said Arizona House Speaker Pro-tem Travis Grantham (R). “I may lose.”


“I am confident that should Democrats challenge HB 2492 in court it will only serve to further reinforce its clear constitutionality,” said the author of the bill, freshman Rep. Jake Hoffman (R).


That attitude continued on to the governor, who signed the legislation into law last week. When it takes effect, 90 days after the end of the legislative session, Arizonans will need documentary proof of citizenship and residence in order to register to vote. If the battle over the law reaches the Supreme Court, it could open doors for other states to follow in Arizona’s footsteps.


“If somebody on the left wants to challenge it,” Gov. Doug Ducey (R) said, “have at it.”

Two Decades In The Making

The fight over citizenship requirements in Arizona goes back to 2004, when a majority of Arizona voters supported Proposition 200, which required those registering to vote to show documentary proof of citizenship. The bill was built on public calls to keep undocumented immigrants from receiving public benefits, but some of its outspoken supporters were open racists: Virginia Abernethy, a leader in the pro-Prop 200 movement, is a self-described “ethnic separatist.”


Years of legal challenges and activism followed. In 2013 — a week before the Court gutted the Voting Rights Act — Antonin Scalia wrote for a 7-2 Supreme Court majority in Arizona v. Inter Tribal Council of Arizona that the state had to “accept and use” a federal form required by the National Voter Registration Act of 1993, which, crucially, only required that voters affirm their citizenship under penalty of perjury, not by submitting any kind of documentation.


State officials interpreted the ruling to establish a separate state form, which required documentary proof of citizenship, alongside the federal form, which didn’t. Arizonans who filled out the latter without providing documentary proof of citizenship could only vote in federal elections.


Today, in line with a 2018 consent decree, more than 30,000 Arizonans have joined the growing list of “federal only” voters. Under HB 2492, those without citizenship proof on file will be disqualified from voting in presidential elections, and from voting early or by mail. Election officials who fail to adhere to the law’s strict rules can be charged with felonies.


Nearly a decade ago, Justices Thomas and Alito dissented, saying essentially that the state should have the power to run elections how it wants, and that the federal law was unclear. Now, should the Supreme Court consider Arizona’s new law, they could be joined by Trump-appointed Justices Kavanaugh, Barrett and Gorsuch.


Tom Horne, the state’s attorney general at the time of the 2013 fight, and now a candidate for state superintendent of public instruction, told the Arizona Republic he had no doubt that the current court would uphold the law. “The law that I litigated would be revived by the Supreme Court,” he said.


The legal fight on the horizon was clear from the early days of HB 2492’s life in the legislature, said Jon Sherman, litigation director at Fair Elections Center, a group that tracks election administration issues and advocates for voting rights.


“Obviously this law was crafted with the Supreme Court’s decision in Arizona v. ITCA in mind. It does, in many of its respects, feel like it is trying to tee up a confrontation over that precedent,” he told TPM.


“The sponsors of this legislation — they said this — are frustrated by the fact that there are federal-only voters who can vote in presidential and congressional elections even though they’ve not established proof of citizenship.”


There’s plenty of Trumpian politics at play here, too: In 2020, according to Ducey, more than 11,600 federal only voters participated in the general election. This, Republicans in support of the bill love to point out, was only slightly more than Trump’s margin of loss in the state.


“To contextualize these numbers,” the conservative Arizona Free Enterprise Club wrote in January, “the 2020 statewide margin of victory for the Presidential election in Arizona was 10,457 votes.”


A month later, the group, which reportedly helped craft the legislation, published a blog post titled, “How More Illegals Started Voting in AZ Elections and How House Bill 2492 Is Going to Fix It.” The article didn’t provide any evidence of “illegals” voting in the state, but it urged readers nonetheless: “Help Stop Illegals from Voting!”


‘Open Defiance Of Federal Law’

Voting rights activists in Arizona have already filed two lawsuits against the new law, and there may be more on the way.


The fight will focus squarely on the 2013 decision.


“[D]isagreement with and open defiance of federal law does not provide adequate justification for the Proof of Citizenship Restriction’s significant burdens on Arizonans’ voting rights,” said one complaint, from the group Mi Familia Vota, after quoting Grantham’s comment about “a fight worth having.”


Legislature Republicans are ready to go there. Sherman, from the Fair Elections Center, said they seemed to be focusing on Constitutional language delegating the “manner” of choosing presidential electors to the states.


Historically, this has governed decisions like whether presidential electors would be chosen by the state legislature or by a popular vote. But it also featured prominently in the effort to steal Donald Trump a second term in office, with legislators across the country pushing to defy voters’ will and install Trump themselves.


Justice Thomas, in his 2013 dissent, noted that while the National Voter Registration Act applied to all federal elections, even presidential races, “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.’” He cited Bush v. Gore.


And Hoffman, the bill’s sponsor, seemed to be following the same logic.


According to Capitol Media Services, the lawmaker said last month that the Constitution gave the legislature the power to decide how presidential electors are chosen, giving Arizona the authority to say that only those voters who can prove their citizenship may participate.


“This distinction has yet to be presented to the court,” Hoffman said.


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