The Republican National Committee is urging the Supreme Court to intervene in an Arizona election dispute this week and block up to 40,000 registered voters in the state from casting ballots in the presidential race.
Republican state lawmakers say these voters failed to provide proof of citizenship when they registered and should now be barred from voting in person or by mail.
While Congress made it easier for Americans to register to vote, those federal rules cannot override “the sovereign authority of the Arizona Legislature to determine voter qualifications 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 weigh in on partisan election disputes. Arizona Republicans had asked for a decision by Thursday because counties will soon begin printing ballots.
Arizona Secretary of State Adrian Fontes said the appeal should be rejected.
“There is no evidence of fraud or undocumented voting. The 2024 election is just weeks away and acting now to restrict the voting rights of a large group of Arizona voters is undemocratic,” he said in a statement.
Many of the affected voters are “military service members, students and Native Americans who did not have birth certificates when they registered,” Fontes added.
On Friday, lawyers for the Biden administration also urged the court to reject the appeal. “Thousands of voters have already registered to vote by submitting the federal form without attaching documentary proof of citizenship,” said Attorney General Elizabeth Prelogar. “Judicial intervention at this stage would produce unnecessary confusion and chaos on the eve of an election.”
Arizona is one of a handful of swing 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 ruling, although some of them are considered “inactive” because they did not vote in the most recent election.
At stake is a long-standing dispute in Arizona over whether voters must show proof of their citizenship when registering to vote.
In 1993, Congress attempted 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 an affidavit that they were U.S. citizens.
But in 2004, Arizona required newly registered voters to present “documentary proof of citizenship.”
The ACLU and civil rights advocates filed a lawsuit challenging that requirement, citing estimates that more than 13 million Americans lacked access to a birth certificate or other similar 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 law.
Justice Antonin Scalia spoke for the 7-2 majority, saying federal law requires states to “accept and use” the standard federal form in federal elections.
In response, Arizona adopted a two-track system for voter registration. To vote in state and local elections, new registrants were required to prove their citizenship through a driver's license or birth certificate.
Those who registered through the federal form were allowed to vote only in federal elections. They are known as “federal-only” voters. Later, in a 2018 consent decree, the state agreed to grant full registration to new voters whose residency and citizenship could be confirmed through its motor vehicle department database.
But two years ago, the Republican-controlled Legislature passed a new law prohibiting registered voters who do not provide proof of citizenship from voting by mail or in a presidential election.
The Justice Department filed a lawsuit challenging 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 drive-through voter law and the state consent decree. The 9th Circuit Court of Appeals, by a 2-1 vote, declined to lift her order on Aug. 1.
A week later, the RNC, joined by the two Republican 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 their ballots for president or by mail.”
They also argued that a federal judge should not be allowed to make a late change to the state's election rules.
Danielle Lang, a voting rights attorney at the Campaign Legal Center who worked on the case, said she found that argument surprising.
“They are trying to change the law as it has been in place in Arizona since at least 2018,” he said. “Voters who registered using the federal form were not asked to provide proof of citizenship.”
He said the Republican lawmakers and their lawyers who brought the case “did not cite a single example of a noncitizen who was registered. Not one. Why would a noncitizen try to register? It’s a felony and you would be deported, just for casting a ballot.”
