By Howard Fischer
Capitol Media Services
PHOENIX -- The Republican Party wants a "seat at the table'' to support a controversial new law that requires proof of citizenship to vote for president.
Legal papers filed Thursday in federal court contend that Secretary of State Katie Hobbs and Attorney General Mark Brnovich may not be as interested in defending the legislation signed earlier this year by Gov. Doug Ducey as local, state and federal Republican parties. Attorney Kory Langhofer said that they may be more interested in settling the case -- or might even lose -- without the participation of the GOP.
Potentially more significant, Langhofer said if the challengers win it "could confuse voters and undermine confidence in the electoral process.'' And that, he said, could make it less likely that Republicans will come out and vote.
At issue is what kind of identification is needed to register to vote.
A 2004 voter-approved law requires proof of citizenship.
But the National Voter Registration Act directed the federal Election Assistance Commission to create its own voter-registration form. It only requires that applicants avow, under penalty of perjury, that they are citizens.
Only thing is, anyone using this form is allowed to vote only in federal races, meaning president and members of Congress.
Arizona tried once before to enforce a proof-of-citizenship requirement for those using the federal form, only to be slapped down by the U.S. Supreme Court in a 2013 ruling. The justices said Arizona is free to demand proof of citizenship from those wanting to vote in state and local elections.
All that went pretty much unchallenged until the 2020 election when Joe Biden defeated Donald Trump in Arizona by 10,457 votes. And that is close to the number of people who voted using the federal form.
The result was Rep. Jake Hoffman, R-Queen Creek, sponsoring HB 2492.
He conceded that the Supreme Court ruling is binding on congressional races. But Hoffman contends the justices never addressed the presidential race. And that, he said, leaves Arizona free to impose a citizenship-proof requirement for those who use the federal form and want to cast a ballot in 2024 and beyond for president.
The Republicans in the House and Senate, along with Ducey, went along despite legislative attorneys advising them that it would provoke a lawsuit. In fact, Rep. Travis Grantham, R-Gilbert, said he was looking forward to going to court, calling it "a fight worth having.''
It came days later as two separate lawsuits were filed in federal court, with Hobbs and Brnovich tasked with defending the statute. But Langhofer said there's a problem with that.
"Defendants have no interest in the election of particular candidates or the mobilization of particular voters, or the costs associated with either,'' he said, as opposed to the interest of the Republican Party and its branches.
In fact, Langhofer said, state officials are acting on behalf of all Arizona citizens and have to consider various interests that might differ from those of the GOP. He said these include the costs of defending the law and the desire of state officials to remain politically popular to "social and political divisiveness of the election issue.''
"All these interests make defendants less likely to make the same arguments, less likely to exhaust all appellate options, and more likely to settle,'' Langhofer said, on terms that may not be to the liking -- or the benefit -- of the Republican Party. He said the party's interests are not only ensuring that GOP registrants have an opportunity to vote but also advancing the overall prospects of Republicans to get elected.
Langhofer told judges in both cases that Republicans need to be able to mount their own defense. He said their interests would suffer if the government officials lost the case or even agreed to a settlement.
"An adverse decision ... would change the entire election landscape'' for party officials and volunteers, Langhofer said, including altering what they would have to do to prepare for upcoming elections. And he said Republicans have an interest in preventing federal judges from voiding what he said is a "valid law that increases voter confidence and promotes election integrity.''
"This court should not consider whether to change Arizona's election rules without giving one of the two major political parties a seat at the table,'' Langhofer wrote.
In filing suit, Daniel Arellano, one of the attorneys Mi Familia Vota, said the legal issues go beyond the 2013 Supreme Court ruling. He said the state entered into a consent decree in 2018 where it agreed to protect the rights of certain individuals use use that federal voter registration form to sign up and to cast ballots for all federal elections.
Arellano also contends 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 Hoffman who said 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 proposed ballot measure to reverse restrictions on voting already enacted by the Republican-controlled legislature and signed by the governor.
The legal issues could 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.
Arellano also said the new law requires county recorders to forward to the attorney general the names of people who are suspected of trying to register without being citizens. But he 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.''
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