Supreme Court Authorizes Arizona to Require Proof of Citizenship for Voter Registration
November 6, 2024
By: Freddy Parola
Following a drawn out, yet still incomplete, legal battle, the Supreme Court allowed Arizona to enforce parts of House Bill 2492, a 2022 law requiring voters to present proof of citizenship when registering to vote. The law was controversial upon arrival and quickly attracted action from the Department of Justice. The law drew criticism as potentially driving away otherwise eligible voters from participating in elections due to an inability to provide immediate documented proof of citizenship.
On May 2, Judge Bolton, writing for the United States District Court for the District of Arizona, ruled in Mi Familia Vota v. Fontes that Arizona’s voting laws were unenforceable. Judge Bolton invalidated various pieces of House Bill 2492 on various grounds, including Sections 6, 7, and 8 of the National Voter Registration Act, a 2018 LULAC Consent Decree, and the Civil Rights Act. The ruling applied to Arizona statutes that govern “Requirements for proper registration,” “Federal only voters,” and “Causes for cancellation.”
This Ninth Circuit issued a decision on July 18, but then, in a Per Curiam Order (an order which is not directly attributed to a single judge, but agreed to by a panel of judges) on August 1, it immediately reversed itself. The Ninth Circuit’s second opinion addressed the enforceability of a statute which requires registration to be accompanied by evidence of citizenship . The decision on July 18 would have allowed Arizona to require proof of citizenship when citizens registered to vote. However, the decision on August 1 backtracked, mainly on grounds related to the Purcell principle.
Following uncertainty caused by the pair of Ninth Circuit rulings, the Supreme Court released an order that impacted three sections of Arizona’s election law. The Supreme Court halted the District Court’s order enjoining enforcement of Arizona’s requirement to provide proof of citizenship when registering to vote but declined to resume enforcement of a requirement imposed on election officials to report people who could not verify their citizenship to the county attorney and attorney general for investigation and a restriction on people registering to vote only in federal elections.
§ 16-121.01(C) requires “any application for registration shall be accompanied by satisfactory evidence of citizenship,” and election officials would be directed to “reject any application” without sufficient proof of citizenship. Violating the law would result in a class 6 felony for any county recorder or officer who knowingly failed to reject an applicant who did not meet the documented proof of citizenship requirement.
§ 16-121.01(E) set the standard for verifying and matching an applicant’s information with citizenship. The county recorder or other officer needed to verify citizenship status. Suppose there is proof that the applicant is not a citizen. In that case, they must reject the application, notify the applicant, and “forward the application to the county attorney and attorney general for investigation.” Under this section, applicants who fail to provide adequate proof of citizenship retain an opportunity to provide evidence of citizenship. The applicant would remain ineligible to vote until they have satisfied their burden.
§ 16-127(A) forbids a person from voting in presidential elections if they have not provided proof of citizenship.
This latest ordeal is not the Supreme Court’s first encounter with Arizona’s proof of citizenship requirements. In Arizona v. Inter Tribal Council of Arizona, the Supreme Court held that the National Voter Registration Act preempted an Arizona law requiring proof of citizenship when registering and voting. The Court said Arizona could petition the United States Election Assistance Commission to include the citizenship requirement on federal forms. Otherwise, Arizona could not reject voters who met the federal requirements without violating the NVRA.
The Supreme Court’s order is peculiar in light of the Purcell principle. The original Purcell decision concerned an Arizona law requiring identification when voting. The Court stated, “Court orders affecting elections . . . can themselves result in voter confusion and consequent incentive to remain away from the polls. As an election draws closer, that risk will increase.” Purcell is also motivated by “the necessity for clear guidance” for the government but fails to provide an explicit timeframe on how close to an election is too close. The Supreme Court invoked Purcell this past May for a case disputing Louisiana’s congressional map.
It is highly plausible that an Arizona resident could neglect to register to vote out of sheer confusion after seeing conflicting headlines over three weeks. Alternatively, an election official could understand a set of election rules one day and then receive an entirely contradictory set of instructions three weeks later.
The Supreme Court’s order should raise red flags for the Purcell principle. The mere 46 days before October 7, the final day Arizona residents may register and be eligible to vote in the November 5 general election, and 75 days before the election itself seem like an extraordinarily short period before conducting an election to allow continued changing of rules. This order on Arizona’s controversial election law is not the first time the Supreme Court has acted irregularly shortly before an election despite Purcell.
Arizona’s voter registration laws are under heavy scrutiny because the state will attract significant attention on election night. The presidential candidate who is given the state’s eleven electoral votes will likely win by a narrow margin. President Biden won the state by slightly above 10,000 votes in 2020. The state’s incumbent-less Senate race could also determine which party controls the Senate.