Supreme Court Partially Restores Arizona’s Proof of Citizenship Requirement for Voting

FAIR Take | September 2024

The U.S. Supreme Court issued an order in late August which restores some of Arizona’s election law regarding proof of citizenship. The Court reinstated a provision that requires residents to prove U.S. citizenship when registering to vote using a state registration form. However, at the same time, the Court refused to reinstate a provision that prevents residents from voting in presidential elections unless they prove U.S. citizenship.

Arizona has a dual registration system. Voters can register to vote using either the federal registration form or the state registration form. Since 2004, Arizona has required proof of citizenship to vote in state and local elections. However, to vote in federal elections, it was only required that registrants attest that they are citizens under the penalty of perjury.

These laws were tightened in 2022 when Arizona enacted House Bill (HB) 2492. HB 2492 requires Arizonans registering to vote provide documentary proof of citizenship. If the voter fails to provide documentary proof, he or she will barred from voting in presidential elections by mail or in-person.

HB 2492 also requires county recorders to reject state voter registration forms that do not include proof of citizenship. If the county recorder (or other officer in charge of elections) does not attempt to verify that the applicant is a citizen, then he or she is guilty of a class 6 felony.

Shortly after HB 2492 was enacted, the federal government and several private-parties filed lawsuits to challenge the law’s validity under the 1993 National Voter Registration Act (NVRA). The NVRA requires all states to “accept and use” a standardized federal form when registering applicants to vote in federal elections. Notably, the NVRA does not require applicants to provide documentary proof of citizenship to register. Applicants are only required to attest by signature that they are citizens.

In its complaint, the federal government argued that H.B. 2492 violated the NVRA because it requires “Arizona registrants using the Federal Form to also submit … proof of U.S. citizenship,” which constitutes an additional requirement that “[t]he NVRA specifically precludes.” The private plaintiffs likewise asserted claims under the NVRA in their amended complaint, arguing that the NVRA “preempts any attempt by states to impose additional requirements to prove citizenship … above and beyond those provided by the Federal Form.”

District Court Judge Susan Bolton consolidated the lawsuits and ruled that HB 2492 did not impose an “undue burden” on voters nor did it violate the Equal Protection Clause of the U.S. Constitution. She held that Arizona could require proof of citizenship to vote in state and local elections, but ruled that Arizona cannot reject state form registrants that do not provide documentary proof of citizenship but must instead register them as “federal only voters.”

On appeal, a panel of judges from the Ninth Circuit Court of Appeals overturned Judge Bolton. Instead, the panel held on July 18 that if registrants use the federal form to register to vote, they cannot be barred from voting in the presidential election whether by mail or in person. If, however, they register to vote using the state form they must provide documentary proof of citizenship or their application must be rejected.

On August 1, however, a subsequent panel of Ninth Circuit judges vacated the initial panel’s ruling that blocked the state from rejecting registrants who used the state form and didn’t provide proof of citizenship.

In response to that ruling, Arizona and the Republican National Committee (RNC) filed an application for emergency relief with the U.S. Supreme Court, asking that the justices reinstate H.B. 2492 while the litigation proceeds. In an unsigned order, the Supreme Court agreed to reinstate the portion of the law that allows Arizona to require proof of citizenship when registering applicants who use a state form. However, the Court declined to allow Arizona to reject federal registration forms submitted by persons who failed to provide documentary proof of citizenship. In a dissenting opinion, Justices Thomas, Alito, and Gorsuch stated that they would have allowed the entire law to go back into effect.

The parties had mixed reactions. “While Democrats have worked to undermine basic election safeguards and make it easier for non-citizens to vote, we have fought tooth and nail to preserve citizenship requirements,” RNC Chairman Michael Whatley stated. Meanwhile, Bruce Spiva, senior vice president at the Campaign Legal Center, issued a statement saying that “[f]ree and fair elections rely on every citizen being able to cast a ballot and the fight is far from over.”

Arizona’s Secretary of State Adrian Fontes also issued a statement, objecting to the fact that changes to the registration process are taking place so close to the election. “It creates confusion for voters,” he said.

The case now returns to the Ninth Circuit where a hearing is scheduled for September 10.