By Howard Fischer
Capitol Media Services
PHOENIX -- The Trump administration may be out.
But a federal judge isn't reversing her ruling that voided provisions of a 2022 law designed to require proof of citizenship to vote on federal races.
In a new order, U.S. District Court Judge Susan Bolton acknowledged that the federal government no longer wants any part of the lawsuit it filed against the state when Joe Biden was president to protect the rights of voters. She actually had issued a ruling finding some of what is in that law illegal, though there are still other legal issues to be resolved.
But Bolton rejected a bid by the attorneys for the Department of Justice, now under Trump, to say she should vacate that judgment, at least as far the federal government is concerned, a move that would pave the way to dismiss all of the claims originally made against the state by the Biden administration.
The problem with all that, the judge said, is the feds were just one of seven civil and voting rights groups who all challenged the laws.
More to the point, those cases were consolidated. And her ruling finding the sections of the 2022 law illegal applied to that entire case.
"Striking the listing of one of the seven cases listed as consolidated ... would delete a fact not vacate a judgment,'' Bolton wrote. "The United States improperly seeks to delete its lawsuit from the factual listing of the cases that were consolidated.''
All of that means is that the judgment that the provisions of the 2022 are illegal remains valid. And that ruling also has been upheld by the 9th Circuit Court of Appeals.
It also keeps alive a side issue the appellate judges told her to now resolve: whether there is evidence that the lawmakers who pushed the bill acted with discriminatory intent.
At the heart of the case is who has to provide proof of citizenship to vote.
That issue was settled in 2004 when Arizona voters approved such a requirement -- but only for state and local races.
Federal races are governed by the National Voter Registration Act. And that requires only signing a form avowing, under threat of perjury, that the person meets all requirements to vote.
In 2022 however, lawmakers decided to make another legal run at the issue, requiring that federal form can be used to vote for president only if the applicant also submits proof of citizenship.
The timing of that was not coincidental
It came after Biden beat Trump in Arizona in 2020 by 10,457 votes. And there were about 11,600 people who were registered as "federal only'' voters at that time, though there are no exact figures on how many of those people actually cast a ballot.
The new law would have kicked in -- and affected -- the 2024 presidential race in Arizona. Even with Bolton blocking the law, however, Trump won the state that year.
There also were other provisions in the 2022 law that Bolton found illegal and blocked their enforcement.
One said those registered with a federal form could not exercise the same right to vote by mail as other Arizonans. And another said those registering to vote with the state form -- the one that requires proof of citizenship -- must also disclose the place of birth.
But the case goes on, with Republican legislative leaders continuing to seek to have the ruling overturned. And what Bolton said in her newest order is that none of that changes, even without the Department of Justice playing a role in the case.
What's pending right now is that Bolton was directed by the 9th Circuit Court of Appeals to determine if legislators, in approving the law, acted with "discriminatory intent'' based on race or national origin.
Bolton, in initially voiding the statute, did not reach such a conclusion, accepting arguments by lawmakers they were acting in good faith. But the appellate judges told her to take another look, saying there is more than enough evidence to find to the contrary.
In writing for the majority, appellate Judge Ronald Gould said the evidence shows that lawmakers knew there had been no voter fraud. That includes the results of an "audit'' of the 2020 election returns sought by Republicans unhappy that Trump lost the popular vote in Arizona.
"Yet the Legislature proceeded to enact legislation aimed at remedying the voter fraud that was contradicted by its own findings,'' the appellate judge wrote. "The Legislature's failure to show evidence of voter fraud in its audit calls into question the sincerity of its belief in the evidence of voter fraud.''
And there was something else that got the attention of the appellate judges: the role of the Arizona Free Enterprise Club in the legislation. In fact, Senate President Warren Petersen himself said that the organization that aligns itself with Republican interests drafted most of the challenged voting laws.
Gould said that organization, in advocating for the laws, sent lobbying materials to lawmakers headed "How more illegals started voting in AZ.''
"This suggests that the Free Enterprise Club -- and architect and advocate of the voting laws -- was motivated by a discriminatory purpose in drafting and advocating for the voting laws, which, in turn, supports a conclusion that the voting laws were the product of intentional discrimination,'' he wrote.
A finding of intentional discrimination by itself is significant, and not just about what it says about the GOP lawmakers who approved the plan and their allies that pushed it.
It would make it harder for legislative leaders to argue when the case eventually goes to the Supreme Court that the restrictions were based solely on their belief that they were necessary to prevent voter fraud. And it opens the door to findings that the state violated other provisions of the federal Voting Rights Act.
Much of the case could become moot if Congress approves the Safeguard American Voter Eligibility Act that would require proof of citizenship to vote in federal elections along with a provision to require states to regularly purge their voter rolls. The House has approved the measure but it still requires Senate action.
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