Lawsuits seek to void Arizona law requiring proof of citizenship to vote
By Howard Fischer
Capitol Media Services
PHOENIX -- Two separate lawsuits are asking federal judges to void a new Arizona law that requires proof of citizenship to vote for president.
Daniel Arellano, one of the attorneys for Mi Familia Vota, a national nonprofit group which promotes voter participation, said the law violates both a 2013 U.S. Supreme Court ruling and a 2018 consent decree that the state agreed to which protects the rights of certain individuals to use a federal voter registration form to sign up. He said they are legally entitled, at the very least, to cast ballots for all federal elections.
But Arellano said the problems with HB 2492 go beyond who can vote in which elections.
He pointed out that the legislation says anyone using that federal form, required by the National Voter Registration Act, cannot cast an early ballot even for offices for which they are entitled to vote. And that runs afoul of constitutional equal protection arguments.
Arellano is telling the judge that there is no legitimate interest in changing the law.
More to the point, he argues that the measure was enacted based on unproven claims by GOP lawmakers that people not in this country legally are affecting election results. He cited comments by Rep. Jake Hoffman, R-Queen Creek, the sponsor of the measure, that the bill is needed because Arizona "cannot allow potentially tens of thousands of noncitizens to vote in our elections.''
"This unsupported fear-mongering is plainly insufficient to justify the proof of citizenship restriction's widespread burdens,'' Arellano wrote.
In a separate lawsuit , attorney James Barton outlined his own arguments.
"No other states in the nation has abridged the fundamental right to vote for eligible voters in such a manner,'' wrote Barton. He represents Living United for Change in Arizona, the League of United Latin American Citizens, the Arizona Students' Association, and ADRC Action which is the sponsor of a ballot measure to reverse restrictions on voting already enacted by the Republican-controlled legislature and signed by Republican Gov. Doug Ducey.
At the heart of the fight are two potentially conflicting laws.
The first is the 2004 voter-approved requirement for proof of citizenship to register to vote. That became a requirement on state voter-registration forms.
Against that is the National Voter Registration Act which allows people to register to vote using a federal form. And that form requires registrants to only avow, under penalty of perjury, that they are citizens.
State officials refused to accept federal forms without citizenship proof. That led to a 2013 U.S. Supreme Court ruling.
The justices concluded that Arizona is free to require citizenship proof on its own forms. But they also said the state cannot refuse to accept the federal form, though it can restrict those who use those forms and do not also provide proof of citizenship to voting only on federal races.
That ruling went pretty much unchallenged until the 2020 election when Joe Biden outpolled Donald Trump in Arizona by 10,457 votes. That led to claims, all unproven, that the results were influenced by the approximately 12,000 people who used that federal form.
Hoffman acknowledged that the Supreme Court ruling is binding.
But he reads it to require only that those who use the federal form be allowed to vote for members of Congress. And Hoffman told Capitol Media Services the question of using the federal form to vote for president remains legally undecided.
That wasn't the opinion of legislative attorneys, a point underlined by Arellano. But he said lawmakers chose to ignore that advice, citing statements by House Speaker Pro tem Travis Grantham, R-Gilbert, that one purpose behind HB 2492 is to provoke a new lawsuit to challenge the National Voter Registration Act.
"We fight for local control of our elections,'' Grantham said.
"Yet when there's an overreach by the federal government we're willing to accept it because they're allowed to preempt us because this court says this,'' he said. calling a new legal challenge "a fight worth having.''
Arellano, however, said that doesn't make HB 2492 legal.
"Disagreement with and open defiance of federal law does not provide adequate justification for the proof of citizenship restriction's significant burden on Arizonans' voting rights.
The legal issues go beyond just those who are using the federal form.
Arellano pointed out that Arizona did not require proof of citizenship to get a driver's license until 1996. And he noted that the Motor Vehicle Division told Capitol Media Services that there are at least 192,000 Arizonans who have one of these pre-1996 licenses who have not re-registered or provided proof of citizenship yet have, until now, been entitled to vote in all elections but could now find themselves having to produce such proof.
Both Ducey and Hoffman contend, however, that nothing in HB 2492 disturbs the ability of those individuals to continue vote in all elections.
There are other issues.
Since 1991 all Arizonans have been able to cast early ballots without having to provide a specific reason. The practice has become popular, to the point where early ballots made up close to 90% of all votes cast in the 2020 general election.
HB 2492 takes that right away from anyone who votes only in federal elections.
"To now substantially strip these registered voters of their ability to vote by mail without any notice substantially burdens their fundamental right to vote,'' Arellano wrote. In fact, he said, there is no opportunity for someone who has registered with the federal form to provide citizenship proof to keep using an early ballot.
"This lack of process will result in registered voters being left in the dark about whether and how they can vote,'' Arellano said. And he told the judge this should not be seen in isolation.
"HB 2492 is merely the latest in a string of baseless allegations of fraud that have led to a host of pernicious efforts in Arizona to target early voting by mail,'' Arellano said.
And there's something else.
He said HB 2492 requires county recorders to forward to the attorney general the names of people who are suspected of trying to register without being citizens. But Arellano said that referral for prosecution can be based solely on the inability of the recorder to locate these names in certain specific databases.
"Such inability could result from something as simple as a typographical error,'' he said. "And fear of wrongful investigation may chill otherwise eligible voters from seeking to register to voter or exercising the franchise.''
Barton said there are other problems with the law, including a requirement to provide new documentary proof of residency.
No date has been set to hear either case which are likely to be consolidated.
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