Supreme Court limits AZ voters' ability to register without providing proof of citizenship
The nation's highest court partially granted an emergency stay Thursday limiting Arizonans' ability to sign up to cast ballots without providing proof of citizenship.
The Supreme Court order gives both sides in the legal challenge a nod but could add to ongoing confusion over voter eligibility before the Nov. 5 election.
The proof of citizenship issue is part of a larger battle raging in Arizona over voter registration laws. The court order could have major ramifications for the presidential race in the state — expected to be close — and, in the longer term, on voter registration laws in other states.
The court on Thursday generally upheld existing rulings that ensure Arizonans the right to vote in federal elections under the same requirements as people in every other state in the country.
However, the court said those registering to vote without proof of citizenship could only do so using a federal form, and that those using an Arizona-specific voter registration form could be rejected, a victory for those who brought the issue to the justices.
State and national Republicans had sought to enforce provisions of a recent state law tightening voter requirements. The case went to the U.S. Supreme Court for consideration after a federal judge blocked certain provisions of the law last year, sparking a series of appeals that so far have been unsuccessful.
Supreme Court Justice Elena Kagan, who oversees applications to the court from Arizona and other states within the U.S. 9th Circuit, referred the matter to the full court. It was ultimately divided on the issue.
The order notes that Justices Clarence Thomas, Samuel Alito and Neil Gorsuch, some of the court's most conservative members, would have granted the request to tighten voter eligibility requirements. Kagan, alongside Justices Sonia Sotomayor, Amy Coney Barrett and Ketanji Brown Jackson would have denied it in full.
The decision means voters who attempt to register without proof of citizenship using Arizona's voter registration form will be rejected going forward, pending appeals in the 9th U.S. Circuit Court of Appeals and any petitions for review.
Voters who attempt to sign up to cast ballots using the federal form without providing proof of citizenship will still be registered. Previously, such voters could use both documents.
The ruling rejected other aspects of the GOP application, including requests to block the state's 42,000 "federal-only" voters who haven't provided proof of citizenship from casting ballots in the presidential race, and to block those voters from casting ballots by mail. These voters will continue to cast ballots for presidential and congressional contests, but not state and local ones.
Arizona House Speaker Ben Toma said the decision was "a step in the right direction" but vowed to keep fighting in court to enforce provisions of the state's voter registration laws.
"I look forward to continuing this litigation in the 9th Circuit to vindicate all of Arizona’s common sense voting laws and eventually bringing this case before the Supreme Court for a full merits review," Toma said.
Several other cases regarding voter registration remain active in lower courts in Arizona.
The issue: Providing proof of citizenship when you register to vote
Nationwide, registration forms generally require voters to attest that they are American citizens. Voters do so under the penalty of perjury, meaning they can be held criminally liable if they are found to have provided false information.
Arizona is the only state in the country that also requires voters to provide a birth certificate, a passport or one of a handful of other documents proving their citizenship.
About 42,000 Arizonans haven't provided that proof, creating a unique, two-track system. Federal courts have repeatedly ruled that state lawmakers can block voters who have not shown citizenship documents from participating in state and local races but must allow federal-only voters to cast ballots in federal contests, including the upcoming presidential race, U.S. Senate contest, and congressional matchups.
Studies have repeatedly shown that voter fraud is rare. Noncitizens who attempt to vote risk fines, prison time, deportation and impeding their naturalization process.
A recent Votebeat analysis found that federal-only voters are disproportionately young people on college campuses who are without access to their citizenship documents.
These voters only represent about 1% of the state's total registered voters. Still, every vote could be key to the outcome of the high-stakes presidential election. In 2020, the contest was decided by under 11,000 votes.
During a two-week period in which the courts previously briefly blocked Arizonans from registering to vote on state forms without citizenship documents, election officials in Maricopa County rejected about 200 voters.
Officials react to mixed order
The court's key decision drew a flurry of reaction from parties to the case and other officials.
The Republican National Committee, in a statement, framed it as "a critical win" for election integrity that will halt "noncitizen voting." The state party quickly followed suit, calling the decision a "MONUMENTAL victory for election integrity."
"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," RNC Chairman Michael Whatley said. "The Supreme Court has sided with the RNC, and the American people, to protect the vote in November."
However, some state officials emphasized concerns that the sudden change could throw the election into chaos weeks before early voting begins. In a social media post, Arizona Senate Democrats called the decision the "latest blow to democracy" and criticized GOP officials for promoting "conspiracy-filled ideas." Their counterparts in the Arizona House of Representatives also swiftly criticized the decision.
"The demographic makeup of these voters and the GOP’s intense efforts to disenfranchise them are not coincidental," House Democrats said on social media.
Arizona election officials said they would immediately begin to implement the court's decision.
"As always, our office will follow the law," said Sierra Ciaramella, a spokesperson for the Maricopa County Recorder's Office.
But some were not without criticism. Democratic Secretary of State Adrian Fontes said he respected the court's order and would implement it, but was worried about its impact on Arizona voters.
"My concern is that changes to the process should not occur this close to an election," Fontes said in a statement. "It creates confusion for voters."
Meanwhile, Senate President Warren Petersen said the legal battle was "far from over." He and other conservatives hope to convince the courts to uphold all provisions of the state's voter registration statutes.
Executive Director Jason Snead of the Honest Elections Project, a national conservative election integrity group, said "more work remains" following the order. Other conservative organizations also weighed in to reaffirm their support for stricter voter registration rules.
"Today, Arizona will be able to protect our elections from illegals voting thanks to the U.S. Supreme Court," said Scot Mussi, president of the Arizona Free Enterprise Club. "We will continue to fight against efforts from liberal special interests to dismantle these commonsense and constitutional laws requiring proof of citizenship to vote in our elections in the Ninth Circuit and look forward to all of the provisions being eventually upheld!"
Arizona Republican Party officials also suggested the order could ultimately embolden other states to pass legislation tightening voter registration requirements. In a statement, party leaders said the ruling was "a major victory that will resonate beyond Arizona."
Issue draws rapt attention from political groups, other states
Several political organizations and two dozen state attorney generals filed briefs in the case before the court made its decision.
Some conservative groups, such as the Free Enterprise Club, were local to Phoenix. Others, such as the Honest Elections Project and Immigration Reform Law Institute, were headquartered in other parts of the country. They framed the case as a test of state's rights and expressed concerns that noncitizen voting could sway the results of races in Arizona.
"Allowing the decision below to remain in effect would create massive uncertainty nationwide and threaten the integrity of Arizona’s elections," attorneys for the Honest Elections Project wrote in a brief.
However, Arizona officials said altering the state's voter registration procedures so close to a major election could "create chaos and confusion, and in turn undermine the credibility of our elections."
"Applicants offer no compelling interest to deprive federal-only voters of their fundamental constitutional right to vote for president of the United States or access to early voting," attorneys for Secretary of State Adrian Fontes wrote in a response to the request for an emergency stay. "Nor could there be."
U.S. Solicitor General Elizabeth Prelogar echoed those concerns in her own brief and argued the National Voting Registration Act preempts state law regarding elections for federal office. She wrote the statute aims to "simplify voter registration" in federal contests and responds to prior "discriminatory and unfair registration laws" that disproportionately impacted certain groups, including non-white voters.
Before 2013, Arizona was one of nine states that were required to submit changes to election laws and electoral district maps to the federal government for review before implementing them. Some localities in a handful of other states were required to undergo the same process, known as "preclearance." The Voting Rights Act mandated it for jurisdictions with an extensive history of discriminatory voting practices but was later struck down by the Supreme Court.
"The NVRA embodies Congress’s judgment that facilitating voter registration is a laudable objective to be pursued, not a source of harm to be avoided," Prelogar wrote in a brief. "Increased voter participation thus does not qualify as irreparable harm."
Meanwhile, Republican officials in other states that could seek to enact similar legislation urged the court to fully grant an emergency stay.
The brief was authored by attorney generals in Kansas and West Virginia. Officials in Alabama, Alaska, Arkansas, Florida, Georgia, Idaho, Iowa, Indiana, Kentucky, Louisiana, Missouri, Montana, Nebraska, New Hampshire, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Texas, Utah and Virginia also signed the document.
That list includes all but two states — Georgia and Mississippi — previously covered in whole by preclearance requirements.
"What happens in Arizona does not stay in Arizona," the brief reads, arguing that "illegal voting" is a threat to states across the country and officials should have the ability to pursue "commonsense election security measures."
How Arizona's voter rolls get checked
Federal-only voters don't provide proof of citizenship with their registration forms — but they still go through checks.
State law mandates that county recorders "use all available resources to verify the citizenship status" of those registering to vote. This includes checking the citizenship status of federal-only voters against an immigration status verification service provided by the Department of Homeland Security when practicable. That system requires specific identification numbers that county officials don't have for every federal-only voter.
Voter rolls are also routinely checked with information from the U.S. Social Security Administration, the U.S. Postal Service, the Arizona Department of Health Services, the Arizona Department of Transportation and the Maricopa County Jury Commissioner’s Office.
If another government agency tells election officials that a person registered to vote is a noncitizen, the person is removed from the voter list.
Sasha Hupka covers county government and election administration for The Arizona Republic. Reach her at [email protected]. Follow her on X: @SashaHupka. Follow her on Instagram or Threads: @sashahupkasnaps. Sign up for her weekly election newsletter, Republic Recount.
This article originally appeared on Arizona Republic: SCOTUS limits Arizona voter registrations without proof of citizenship
