Federal judge approves voting by mail in Arizona
By Howard Fischer
Capitol Media Services
PHOENIX -- A federal judge on Thursday blocked Arizona from enforcing a 2022 state law limiting who can vote for president.
In a new ruling, U.S. District Court Judge Susan Bolton said Arizonans who use a federal voter registration form are entitled to cast a ballot in presidential elections. More to the point, the judge voided parts of the statute which says that only those who provide "satisfactory evidence of citizenship'' can vote in those elections.
Bolton also said the state cannot enforce another provision which bars anyone who uses this federal form from voting by mail.
But the judge withheld final judgment on whether other changes in state voter registration laws enacted by the Republican-controlled Legislature also run afoul of federal laws. That will be determined after a full-blown trial.
In a separate ruling, however, Bolton gave challengers -- including the voting rights groups like Mi Familia Vota and the U.S. Department of Justice -- the ability to question Senate President Warren Petersen and House Speaker Ben Toma about their motives for approving the laws.
"The speaker and president must produce communications that they have sent or received relating to the voting laws' legislative process and withheld on legislative privilege grounds,'' the judge wrote. "They may also be deposed about their personal involvement in the voting laws' legislative process.''
The heart of the ruling, however, overturns efforts by GOP lawmakers to limit, ahead of the 2024 presidential race, who can cast a ballot.
State law requires people to provide proof of citizenship to vote. That is not in dispute for state or local races.
But the National Voter Registration Act also requires the Election Assistance Commission to prepare a form that can be used to vote in federal elections. And that form mandates only that applicants sign a sworn statement avowing, under penalty of perjury, they are in fact citizens.
Sen. Jake Hoffman, R-Queen Creek, who was a representative at the time, said that "ignores the Constitution.'' He said Congress is allowed to pass laws pertaining to the times, places and manners of electing representatives and senators.
"The Constitution gives no such power (by Congress) over presidential elections,'' Hoffman argued at the time, saying that power is reserved to the states. And that, he said, means Arizona is free to set voting requirements in presidential races, including proof of citizenship.''
"The plain language of the National Voter Registration Act reflects an intent to regulate all elections for federal office, including for president or vice president,'' she wrote. "And binding precedent indicates that Congress has the power to control registration for presidential elections.''
Similarly, Bolton said federal law preempts a requirement in the challenged statute that anyone who uses the federal form must provide documented proof of citizenship in order to vote by mail in any race for which they are eligible to vote. She said that's not what the federal law says.
"Congress recorded that it enacted the National Voter Registration Act not just to establish procedures that will increase the number of eligible citizens who register to vote in elections for federal office, but also to make it possible for federal, state and local governments to implement this chapter in a manner that enhances the participation of eligible citizens as voters in elections for federal office,'' Bolton said.
"Further, Congress found that discriminatory and unfair registration laws and procedures can have a direct and damaging effect on voter participation in elections for federal office and disproportionately harm voter participation by various groups, including racial minorities,'' the judge continued. "It is the duty of federal, state and local governments to promote the exercise of the fundamental right to vote.''
Hoffman's legislation was one of several dozen measures introduced in the legislative session closely linked to the "Stop the Steal'' movement that insists that Donald Trump actually outpolled Joe Biden in Arizona.
Most of those efforts were based on various claims, all unproved, that the election process itself was flawed, with everything from fake ballots being injected into the system to tabulation equipment being reprogrammed by outside sources. Some have remained unconvinced despite an independent review conducted by Maricopa County which found that its counting machines were never connected to the internet.
This measure specifically stems from the idea that people not in this country legally actually went to the polls and cast ballots, a contention by Trump supporters that may have affected the outcome which showed Biden won Arizona by 10,457 votes.
What could have enabled that, Hoffman said at the time, is that about 21,000 Arizonans signed up to vote using not the state registration form, which has a proof-of-citizenship requirement, but the form prepared by the Election Assistance Commission which entitles registrants to vote only in presidential and congressional races, mandates only that applicants sign a sworn statement avowing, under penalty of perjury, they are in fact citizens.
On signing the measure, then-Gov. Doug Ducey said he accepted Hoffman's argument that there is a "legal nuance'' that allows the state to seek citizenship proof in presidential contests that it cannot seek in congressional races. He said it's also the right thing to do.
"I believe voter ID is Step 1 of being able to vote, and proof of citizenship along with that,'' the governor said at the time. "This bill ensures that.''
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