Arizona could force U.S. Supreme Court to again consider proof of citizenship for voting

A GOP-sponsored bill signed into law Wednesday in Arizona requires documentary proof of citizenship to register to vote, a mandate that the U.S. Supreme Court has said is unconstitutional.

By signing the bill, Republican Gov. Doug Ducey is setting up Arizona for an inevitable legal challenge that will likely allow the U.S. Supreme Court to weigh in again.

House Bill 2492, passed by Republican lawmakers in both chambers on a party-line vote, requires Arizona election officials to verify the citizenship status of everyone who registers to vote using the federal voter registration form. Currently, people registering with the federal form just need to vow that they are citizens but don’t need to provide documentary proof, like a birth certificate, passport, or naturalization papers. 

“We think it’s good legislation,” Ducey said at a press conference after signing the bill Wednesday. “We think it protects the voters and protects citizens to ensure and not dilute their vote. And if somebody on the left wants to challenge it, have at it.”

The law will take effect 90 days after the end of the legislative session, so it possibly could be in place before the early August primary election. 

Democrats say the bill will potentially disenfranchise tens of thousands of long-time voters, who will have to scramble to present proof of their U.S. citizenship to keep their registrations active. Currently, Arizona allows those who don’t prove their citizenship to vote in federal elections, but the bill would require the roughly 31,000 people who are federal-only voters to also show proof of citizenship. 

Arizonans who registered to vote before 1996 in the state, before proof of citizenship was required to get a driver’s license, and have not updated their voter registration would have to provide documentary evidence.

County recorders would also be required to check voter rolls against citizenship databases and purge anyone who isn’t listed as an eligible citizen. Recorders who don’t comply could face felony charges. Election officials would also face felony charges for failing to reject voter registrations that don’t include proof of citizenship. 

The bill violates the National Voter Registration Act, according to a U.S. Supreme Court ruling from 2013. The court found that Arizona cannot supersede federal law, which doesn’t require proof of citizenship to register to vote. Lawmakers are aware that it’s unlawful, as the legislature’s legal counsel Jennifer Holder told them in a February hearing. 

But Ducey at the press conference denied the bill is unlawful. “It’s not unconstitutional,” he said. “It’s going to be the law of the land in 90 days. And I believe that voter ID is step one of being able to vote, and proof of citizenship along with that. This bill ensures that. And if somebody wants to challenge it in court, that’s our system.”

Since the high court last ruled on the question, it has become more conservative, providing an opening for Republicans who want to change federal law. Conservatives now dominate the U.S. Supreme Court, 6-3.

“We can expect this to be challenged and it will be appealed all the way up,” said Arizona state Sen. Martin Quezada, a Glendale Democrat.

“This is part of a larger narrative they’re pushing that the 2020 election was fraudulent and that Joe Biden didn’t win the state of Arizona,” Quezada explained. “Even though this narrative has been debunked over and over again, they’re still using it as a justification for these bills.”

GOP sponsor

The bill’s sponsor, Republican Rep. Jake Hoffman, has been vocal since the 2020 election about what he sees as integrity issues with how Arizona runs elections. He supported former President Donald Trump’s claims that the 2020 election was stolen and was also one of 11 people from Arizona and 84 across the country to act as a fake elector for Trump. 

He then dodged questions about his role in the scheme to send Congress a slate of electors for Trump. 

In addition to his work in the state legislature, Hoffman also runs a conservative digital marketing company, Rally Forge, that was banned from Facebook for engaging in “coordinated inauthentic behavior” on behalf of Turning Point Action, which advocates for conservative values in schools. 

Hoffman’s company paid teens to share social media comments with right-wing opinions, including that mail-in ballots would lead to fraud. Hoffman himself was suspended from Twitter in the lead-up to the 2020 election.

Hoffman has brushed aside claims that his proof of citizenship requirement is a violation of federal law, saying that it is necessary to protect elections. 

“This bill ensures that there is maximum flexibility to provide documentary proof of citizenship, but we don’t want foreign interference in our elections,” Hoffman said, according to Courthouse News

Hoffman did not respond to a request for comment.

Not just Arizona

Arizona joins a small number of states that in the past two decades have passed laws requiring voters to prove their citizenship when they register, claiming that doing so will prevent ineligible non-citizens from ending up on the voter rolls. 

Currently, four states — Kansas, Alabama, Georgia, and Arizona — have laws on the books requiring a documentary proof of citizenship to register to vote, but only Arizona’s law is in effect. Kansas’ law was invalidated by a court and Georgia and Alabama never enforced theirs. 

Instances of non-citizens voting are exceedingly rare even without this requirement, as voters sign a registration form saying they are eligible under penalty of perjury and non-citizens risk criminal charges or deportation if they do attempt to register. 

In 2004, Arizona voters passed the first documentary proof of citizenship law in the country. Kansas followed shortly after with a similar law in 2011. 

In the first few years of the requirement, Kansas and Arizona each blocked tens of thou­sands of attemp­ted regis­tra­tions. In Kansas, the rejected registrations amounted to between 8 and 14 percent of new registrants. The vast majority of the people whose registrations were blocked were eligible, but lacked documentary evidence of their citizenship. 

The laws are more likely to affect low-income Americans, the elderly, homeless, or other groups that may have a harder time accessing their documents than the average citizen. Non-white voters are less likely to have access to documents to prove their citizenship. 

Surveys show that between 5 and 7 percent of Americans lack a documentary proof of citizenship. People who are more likely to be born outside a hospital, like Native Americans, are also less likely to have access to the necessary documents. 

Arizona state Sen. Sally Ann Gonzales, a Democrat who was raised in the Yaqui community and is married to a longtime Pascua Yaqui tribal councilman, said she knows many people who don’t have the necessary paperwork because they were born at home. 

“They never had the need to register their birth,” she said. “I don’t know if they realize it or if they just don’t care that there’s lots of people in the situation who don’t have a birth certificate to prove their citizenship.”

Even for people who do have the necessary ID, requiring that they locate it can be a deterrent to register. 

“I think [Republicans’] hope is that not everybody is going to jump through those hoops and their hope is that the groups that are going to be impacted more are going to be the groups that are likely to vote against them,” Quezada said. 

The laws also make it much more difficult for third party groups to conduct voter registration drives, as most people don’t commonly carry a document that proves their citizenship. 

Supreme Court action

In the 2013 Arizona decision, the U.S. Supreme Court heard a challenge to the measure passed by Arizona voters and found that the state can’t mandate proof of eligibility beyond an oath on federal forms. 

Then two years later, the Supreme Court declined to hear another case in which Kansas and Arizona again tried to place proof of citizenship requirements on the federal voter registration form, keeping in place a lower court order against the states. 

The architect of Kansas’ law, Kris Kobach, is one of the most prominent supporters of proof of citizenship laws. 

Kobach served as secretary of state of Kansas from 2011 to 2019 and is a close Trump ally. When he served as vice chair of Trump’s Presidential Advisory Commission on Election Integrity, he reportedly pushed the federal government to require documentary proof to vote for all citizens.

Gonzales said she views the larger effort for proof of citizenship laws as one by Republicans to reckon with the fact that white voters won’t be the majority in many states in the near future, as the Latino population of the United States grows and the electorate shifts. 

“They see the writing on the wall and they’re struggling with that,” she said. “This is their way of keeping power.”

“It’s unconstitutional, it’s going to cause litigation, and the taxpayers of Arizona are going to have to pay,” she added.

On Wednesday, Ducey said he’s not concerned about the taxpayer cost of potential litigation.

Arizona Mirror Associate Editor Jeremy Duda contributed to this report.

***UPDATED: This story has been updated with additional comments from Doug Ducey.