A federal judge dismantled new state laws on Thursday that required voters to prove their citizenship, agreeing in her ruling to allow rights groups to probe legislative leaders’ intentions in creating the laws.
By Ray Stern
Former Republican Gov. Doug Ducey signed the two laws, which ban certain people from voting by mail or in state elections, last year after Republicans passed them on party lines despite a warning from staff that the provisions in one of them were unconstitutional.
The U.S. Department of Justice and seven different civil rights groups, including the Arizona-based Mi Familia Vota and Living United for Change in Arizona, sued the state over the laws in what later became a consolidated lawsuit. Thursday’s ruling by U.S. District Judge Susan Bolton didn’t end the legal action but made it clear that federal laws, not state, govern the issue of proof-of-citizenship for voters.
“This is an enormous victory for Arizona voters,” said Danielle Lang, an attorney for one of the rights groups that sued, the Washington, D.C.-based Campaign Legal Center. “These laws … smack of discriminatory intent against voters who have been historically disenfranchised in Arizona.”
After November’s election, Democrats Kris Mayes and Adrian Fontes now inhabit the offices of the state attorney general and secretary of state, resulting in Republican Senate President Warren Petersen and House Speaker Ben Toma needing to intervene in defense of the Republican-passed laws.
But Bolton’s ruling means that if Petersen and Toma want to keep fighting for the laws, they will have to submit to depositions and turn over any communication that might explain how the laws came about.
“We don’t know what there is to see,” Lang said of the emails and other communications from the leaders that could be uncovered.
Some provisions in the law, such as one that requires voters to reveal their birthplace, seem to have “no other purpose than to discriminate,” Lang said. Lawmakers need to be “open and honest” about their reasons for passing the law, she added.
Petersen and Toma declined comment, saying they were still reviewing the ruling. Andrew Wilder, spokesman in the state House for the majority, said leaders were “evaluating next steps.”
Provisions canceled, for now
Twenty years ago, Arizona voters passed a ballot measure overwhelmingly that tightens proof-of-citizenship requirements for voting, but the U.S. Supreme Court shot it down in 2013, saying it ran afoul of the National Voter Registration Act.
Republican lawmakers, including some concerned over debunked reports of large numbers of noncitizens voting in the 2016 and 2020 elections, want to see that ruling reversed. After being told by a staffer that House Bill 2492 was likely not constitutional, Rep. Travis Grantham, R-Gilbert, chair of the House Rules Committee, said, “This is a fight worth having.”
Only citizens are allowed to vote, but federal voting forms allow voters to simply check a box affirming they are citizens instead of proving their status with documentation.
House Bill 2492 changed the criteria for proper identification when voting or registering to vote, banning people who could not produce official proof of citizenship, like a passport or post-1996 driver’s license, from voting or registering to vote. It also required the state Attorney General’s Office to investigate all cases in which noncitizens attempted to vote or register.
House Bill 2243 required county elections officials to cancel the registration of any voter in the rolls who didn’t have proof of citizenship or had moved or obtained a driver’s license in a different state. Both bills were sponsored by now-Sen. Jake Hoffman, R-Queen Creek, chair of the far-right Arizona Freedom Caucus.
Voting activists warned at the time the laws would negatively affect the state's most marginalized voters, including people of color and the unhoused.
Bolton’s ruling pushes aside the law’s new requirements, telling Arizona officials — among other things — exactly which documents satisfy voter identification requirements. “Any Tribal identification document” works, and so does “written confirmation signed by a registrant that they qualify to register” if they don’t live in a fixed or permanent structure.
The ruling clarifies that state law doesn’t require tribal members or any other Arizona resident to have a standard street address for their home in order to vote, and that state officials can’t reject a voter registration solely because the voter didn’t check the box affirming citizenship, as long as the person is otherwise qualified to vote.
The provision that banned voting by mail for voters who couldn’t prove citizenship “frustrates the purpose” of the National Voting Rights Act of 1993, Bolton said, noting that the act forbids “discriminatory and unfair registration laws and procedures.”
The ruling affirms the consent decree imposed on Arizona after the 2013 Supreme Court ruling that requires the state to “treat Federal and State Form users the same when registering applicants for federal elections.”
Continued court fight possible
Lang said she looks forward to continuing the fight to get court orders denying Arizona the ability to enforce the two laws. The case is set for trial starting Nov. 6.
Hoffman, in a statement to The Republic, called Bolton’s ruling “laughable, but sadly not surprising and why so many have lost trust in our judiciary.”
"All Arizona wants to do is ensure that only U.S. citizens can vote,” he said.
He accused Bolton of a “total abandonment of sound logic and reasoning” in her conclusion that the previous consent decree should bind all legislatures “in perpetuity,” deeming the move “judicial activism at its worst.”
“I look forward to these laws making their way to the U.S. Supreme Court and being ruled constitutional,” Hoffman said.