The Republican National Committee is urging the Supreme Court to intervene in an Arizona election dispute this week and block up to 40,000 of the state’s registered voters from casting ballots in the presidential race.
Republican state lawmakers say these voters did not provide proof of their citizenship when they were registered and now they should be barred from voting in person or by mail.
Although Congress made it easier for Americans to register to vote, those federal rules cannot override “the Arizona Legislature’s sovereign authority to determine the qualifications of voters and structure participation in its elections,” they said in an emergency appeal filed Aug. 9.
The fast-track appeal may signal whether the conservative court is ready to intervene in partisan election disputes. The Arizona Republicans asked for a decision by Thursday because counties will soon begin to print ballots.
Arizona Secretary of State Adrian Fontes said the appeal should be rejected.
“There is no evidence of fraud and undocumented voting. The 2024 election is weeks away and acting now to restrict the voting rights of a large group of Arizona’s voters is undemocratic,” he said in a statement.
Many of the affected voters are “service members, students and Native Americans who did not have birth certificates while registering,” Fontes added.
On Friday, Biden administration lawyers also urged the court to turn down the appeal. “Thousands of voters have already registered to vote by filing the federal form without accompanying documentary proof of citizenship,” said Solicitor General Elizabeth Prelogar. “Judicial intervention at this stage would produce unnecessary confusion and chaos on the cusp of an election.”
Arizona is one of the handful of battleground states that could decide who wins the White House. In 2020, President Biden won the state by 10,457 votes.
Last week, the secretary of state’s office said 41,128 registered voters in Arizona could be affected by the court’s ruling, although some of them are considered “inactive” because they did not vote in the most recent elections.
At issue is a long-running dispute in Arizona over whether voters must furnish proof of their citizenship when they register to vote.
In 1993, Congress sought to make it easier to register to vote. The National Voter Registration Act, commonly known as the “motor voter” law, allowed prospective voters to fill out a form to register and sign a sworn statement that they were U.S. citizens.
But in 2004, Arizona required newly registered voters to provide “documentary proof of citizenship.”
The ACLU and civil rights advocates sued to challenge that requirement. They cited estimates that more than 13 million Americans lacked access to a birth certificate or other such documents.
They won in the lower courts, and the Supreme Court ruled in 2013 that the federal motor voter law preempted or overrode the state’s law.
Justice Antonin Scalia spoke for the 7-2 majority and said the federal law requires states to “accept and use” the standard federal form in federal elections.
In response, Arizona adopted a two-track system of voter registrations. To vote in state and local elections, new registrants were required to show proof of their citizenship with a driver’s license or a birth certificate.
Those who registered through the federal form were allowed to vote only in federal elections. They are referred to as “federal only” voters. The state later agreed in a 2018 consent decree to give full registration to new voters whose residence and citizenship could be confirmed through its motor vehicles department data base.
But two years ago, the Republican-controlled Legislature passed a new law that prohibits registered voters who do not provide proof of their citizenship from voting by mail or in a presidential election.
The Justice Department sued to challenge the laws.
After a 10-day trial, U.S. District Judge Susan Bolton in Phoenix blocked enforcement of the new proof-of-citizenship requirement, citing the federal motor voter law and the state consent decree. The 9th Circuit Court of Appeals, by a 2-1 vote, refused to lift her order Aug. 1.
A week later, the RNC joined by the two GOP leaders of the Arizona Legislature urged the Supreme Court to set aside Bolton’s ruling to the extent that it would “allow voters who have not provided documentary proof of citizenship to cast ballots for president or by mail.”
They also argued that a federal judge should not be allowed to make a late change in the state’s election rules.
Danielle Lang, a voting rights attorney for the Campaign Legal Center who worked on the case, said she found that argument to be surprising.
“They are trying to upend the law as it has been in Arizona at least since 2018,” she said. “The voters who registered using the federal form were not asked to provide proof of citizenship.”
She said the Republican lawmakers and their attorneys who brought the case “didn’t cite a single example of a noncitizen who was enrolled. Not one. Why would someone who is not a citizen try to register? It’s a felony and would get you deported, just to cast one ballot.”
