By Howard Fischer
Capitol Media Services
PHOENIX -- Calling Trump's actions illegal, Arizona and other states filed suit Thursday to block a new executive order designed to impose new federal regulations on how the states conduct elections.
"The executive order that we have sued to stop is an unacceptable and unconstitutional intrusion on the rights of states and the power of Congress by an out-of-control executive branch hell-bent on destroying 250 years of precedent,'' said Attorney General Kris Mayes. She along with Democratic officials from 18 other states are asking a federal judge in Massachusetts, where they chose to file the lawsuit, to declare specific provisions of the order to be unlawful and unenforceable.
Some of what's in the order -- and is being contested -- does not affect Arizona. For example, the state already requires documented proof of citizenship to vote in state and local elections.
But Mayes, in the lawsuit, points out that if Trump's order is allowed to take effect, those who want to vote only only in presidential and congressional elections now also would be required to provide such proof. And that, she said, is contrary to federal law.
And Mayes said it's even worse than that.
The list of documents that Trump says is acceptable does not include items that even the Republican-controlled Arizona Legislature has said are sufficient.
Gone, for example, would be the ability to use a legible copy of a birth certificate.
Trump's order would allow passports to be used as proof -- both not legible photocopies which are acceptable in Arizona.
Also no longer valid for federal registration would be naturalization documents or someone's Bureau of Indian Affairs card number, tribal treaty card number, or tribal enrollment number.
Strictly speaking, that would affect only the nearly 49,000 Arizonans who registered using a form designed by the federal Elections Assistance Commission. That compares with more than 4.4 million who are registered to vote in Arizona.
Mayes said that still is unacceptable.
"It's onerous, especially in regard to our tribes,'' she said.
But even small numbers are important in federal races. In 2020, for example, Biden won the state's 11 electoral votes by defeating Trump by 10,457 votes.
And if the order takes effect, it would affect most immediately a special primary this summer to fill the vacancy created by the death last month of Congressman Raul Grijalva.
Secretary of State Adrian Fontes has his own concerns with what Trump is doing.
"This administration's executive order is asking us elections officials to turn your personal identifying information in these voter records over to the federal government, over to DOGE,'' he said. "And I can tell you right now, I don't want Elon Musk and his crew of incompetents taking those voter rolls away from our office.''
There's more.
Trump's order also spells out that ballots must be received no later than on Election Day.
On one hand, that doesn't matter as that already is the law in Arizona. Some other states use a postmark as a deadline.
Mayes said though that, as worded, it could override a state law that gives voters up to five days after an election to "cure'' a ballot.
That most often occurs when the signature on a ballot envelope does not match county records. The curing can occur simply by voters contacting the election office, including by phone, to verify they are, in fact, the ones who sent in the ballot.
A strict election night deadline, said Mayes, could disenfranchise thousands of Arizonans who vote by mail.
And the attorney general said there's also the fact that the president, in his March 25 executive order, threatened to withhold federal dollars from states that do not comply as well as potentially refer state and local election officials to the Department of Justice for prosecution.
All that, said Mayes -- who has so far sued the Trump administration nine times since he took office -- is another example of presidential overreach.
"It is another glaring example of an administration that simply does not believe it has to follow the law,'' she said.
"I feel like a broken record at this point,'' Mayes continued. "But in the United States of America we do not have kings, we do not have dictators. We have a Constitution and the rule of law.
At the heart of the complaint is the contention by Mayes and others that the president, in his March 25 executive order, ignoring federal law.
In its broadest form is the contention that the Constitution leaves running elections up to each state.
It does allow Congress to make certain rules. In fact, Congress in 1993 approved the National Voter Registration Act.
Among its provision was requiring the federal Elections Assistance Commission to come up with a single form that people could use to register to vote in addition to state-created forms.
Notably, Congress determined that those using the form need not provide documentary proof of citizenship. Instead, applicants need only avow, under the penalty of perjury, that they are citizens and otherwise eligible to vote.
None of that affects those registering to vote in state and local elections in Arizona, with such proof required under a 2004 voter-approved law.
But pursuant to the federal law, Arizona has allowed those using that federal form who don't have the required proof to cast ballots in presidential and congressional races. And federal courts, citing that federal law, have repeatedly voided subsequent efforts by the Republican-controlled Legislature to deny them that right.
The most recent figures show there are 48,843 individuals on the "federal only'' registration list. Trump is ordering the Elections Assistance Commission to amend its registration form to now require proof of citizenship.
Mayes and her counterparts say the president can't do that.
"Congress required the Commission to operate independently,'' the lawsuit states. And it says that the commission is required to make its decisions under standards of bipartisanship -- and in collaboration with states which actually administer federal elections.
"The Elections Executive Order seeks to eradicate all those safeguards -- aiming to force the commission to rubberstamp the president's policy preferences on, among other things, voter registration and voting systems,'' the challengers are telling the judge.
It's even more complex.
"The president cannot add a documentary proof of citizenship requirement to the federal form, because even the commission could not impose that requirement,'' Mayes and the other attorneys say, at least not without a vote of the commission.
In fact, they note, Kansas and Arizona in 2014 -- when Republicans Jan Brewer was governor and Ken Bennett was secretary of state -- actually asked the commission to add requirements to the form for applicants to provide citizenship proof. The commission, however, rejected that request for, among other reasons, that it would make organized voter registration programs less available.
And that decision was later upheld by a federal appellate court who said the commission's acting director was within her rights to reject the request.
Judge Carlos Lucero, writing for the unanimous three-judge panel, said the evidence shows there are other -- and less burdensome -- ways for states to ensure people who are not citizens do not vote. He also said there was no "substantial evidence'' that those in the country illegally were using the federal form to register or vote.
This isn't the first challenge to the president's order.
The Campaign Legal Center and the State Democracy Defenders Fund filed their own challenge on Monday on behalf of voter advocacy groups, including the League of United Latin American Citizens and the Arizona Students' Association.
That was followed a day later by civil rights groups, including the NAACP, represented by the American Civil Liberties Union. And another lawsuit was filed by the Democratic National Committee, the Democratic Governors Association, and Senate and House Democratic leaders.
But Josh Bendor, the state solicitor general -- a position within the Attorney General's Office -- said it was important for the state to file its own lawsuit.
He said that federal judges often issue injunctions that cover only the states that have sought them. What that means, Bendor said, is that even if, say, a judge agreed to block Trump's order in a lawsuit brought by a voting rights group from another state it might not cover Arizona, leaving election officials here at risk.
—--
On X, Bluesky and Threads: @azcapmedia