In 2022, Arizona has had no shortage of legislation seeking to restrict the right to vote, from bills eliminating early voting to banning drop boxes. Last Wednesday, Gov. Doug Ducey (R) signed House Bill 2492, the first of these bills to pass the Legislature, into law, reestablishing a proof of citizenship requirement for all voters. In his signing statement, Ducey argued the law furthers Arizona’s position as a leader in election integrity by ensuring noncitizens aren’t voting — even though there’s no evidence nonvoters vote in any significant number. What’s more, H.B. 2492 likely runs afoul of a U.S. Supreme Court ruling and could endanger the voting rights of thousands of otherwise eligible Arizonans.
In 2013, the U.S. Supreme Court held that Arizona’s proof of citizenship requirement did not apply to federal voter registration forms.
In 2004, Arizona voters approved a ballot measure that required election officials to reject any voter registration application not accompanied by proof of citizenship, such as a birth certificate, passport or tribal ID. However, the 1993 National Voter Registration Act (NVRA) requires states to “accept and use” a uniform federal form to register to vote for federal elections — a form where voters simply have to check a box attesting they are a citizen. As a result of the new requirement, Arizona election officials at the time began rejecting these federal forms if they weren’t accompanied by proof of citizenship, even though the forms themselves didn’t require it.
Several organizations sued Arizona over this citizenship requirement, noting that many U.S. citizens lack documentary proof of citizenship. In 2013, the Supreme Court ruled in Arizona v. Inter Tribal Council of Arizona that Arizona must accept federal forms even if they are unaccompanied by proof of citizenship because the NVRA preempts Arizona’s citizenship requirement. Since the ruling, Arizona voters have been able to register using federal forms and vote in federal elections without providing proof of citizenship.These Arizonans are known as “federal only” voters. The 2013 decision did not impact voters who register using state forms, which still require them to submit documentary evidence of citizenship.
Arizona’s new law is an attempt to get around this Supreme Court case that could disenfranchise thousands of eligible voters.
H.B. 2492 reimposes a proof of citizenship requirement while still facially complying with the Supreme Court’s decision. Rather than requiring proof of citizenship with federal registration forms, it instead instructs election officials to investigate the citizenship of any applicant within 10 days of receiving a federal form. If election officials cannot verify the applicant is a citizen, the applicant will not be permitted to vote until they submit documentary proof. So while Arizona officials are technically accepting federal forms without proof of citizenship, those registrants may be prevented from registering and voting after the fact. Indeed, the Legislature’s own lawyers conceded the law likely runs afoul of the NVRA and the Supreme Court’s 2013 decision.
Even more troubling, however, are the law’s provisions targeting currently registered voters. First, it prohibits any registered voter who has not provided adequate proof of citizenship — even if they weren’t required to when they originally registered — from voting in presidential elections. It also prohibits any “federal only” voters without proof of citizenship from voting early by mail, the most popular voting method in the state. Finally, the law directs election officials to give the Arizona attorney general a list of registered voters who lack proof of citizenship for investigation and possible prosecution. Importantly, none of these voters have done anything wrong and, like voters targeted for purges in Texas, there’s no reason to suspect any of them aren’t citizens.
While it’s unclear exactly how many Arizonans would have their voting rights immediately stripped away by this proof of citizenship law, it could be over 200,000 — approximately 190,000 voters who have not reregistered since the enactment of the proof of citizenship requirement and 31,000 voters who registered using federal forms. The law doesn’t provide any system to notify these voters, so they might not find out until they try to vote or request a mail-in ballot. It also can be quite difficult to prove citizenship — millions of Americans across the country, especially elderly, minority and naturalized voters, lack the kind of documentary proof the law requires and the costs of obtaining such proof can be substantial. Simply put, H.B. 2492 makes it harder to vote in Arizona — despite no evidence of noncitizens voting in substantial numbers.
Arizona has already been sued twice over this proof of citizenship law.
Recognizing the substantial burdens H.B. 2492 places on Arizona voters, the civic engagement organization Mi Familia Vota filed a lawsuit in federal court shortly after Ducey signed it into law. The complaint alleges the law violates the First and 14th Amendments of the U.S. Constitution by placing an unjustified burden on the right to vote and violating voters’ due process rights. It asks the court to declare the law unconstitutional and block the state from enforcing it. “The legislation Governor Ducey just signed goes beyond anything that our state has ever done. We will not stand by and allow this to happen, and that is why we pushed forward with this critically important lawsuit,” said Carolina Rodriguez-Greer, Mi Familia Vota’s Arizona state director.
Several other nonprofit organizations filed a similar lawsuit challenging the law. In addition to the claims raised by the first lawsuit, they allege the law’s requirement that applicants list their place of birth on state registration forms violates the Civil Rights Act of 1964. They also highlight the law’s discriminatory impact on naturalized citizens, as the databases election officials are mandated to used to verify citizenship often do not accurately reflect the status of naturalized Americans.
H.B. 2492 — like most restrictive Republican voting laws — is a solution in search of a problem that arbitrarily discriminates against citizens and makes it harder to vote. If the courts are serious about defending our fundamental right to vote, they will step in and block H.B. 2492 before Arizonans are irreparably harmed.