Two Arizona Voter Suppression Laws Go to Trial

By Madeleine Greenberg

A dark blue background with a manilla folder. On the left side of the manilla folder there is a letter from the Arizona attorney general's office printed on red paper and the U.S. Consitution in blue paper overlays the letter. Attached to the dop of the folder with a paperclip is a voter registration card that is stamped "CANCELED". On the right side of the folder there is a court document and on the bottom right hand corner there is a sticky note that says "AZ Citizenship Requirement Trial"

In 2022 Republicans passed two voter suppression laws that established strict documentary proof of citizenship (DPOC) and documentary proof of residency (DPOR) requirements for Arizona voters, expanded the reasons a voter’s registration can be canceled and allowed for more voter purges. These laws — House Bills 2492 and 2243 — put thousands of Arizonans’ voter registrations at risk and today marks the start of a critical 12-day trial that will determine their fate.  

In 2004, Arizona voters approved a ballot measure that required election officials to reject any voter registration application not accompanied by documentary proof of citizenship. The 1993 National Voter Registration Act (NVRA) requires states to “accept and use” a uniform federal form to register to vote for federal elections that does not require additional DPOC. As a result of these conflicting state and federal laws, Arizona election officials began rejecting federal forms if they weren’t accompanied by documentary proof of citizenship. 

In turn, several organizations sued Arizona over this scheme, arguing 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 voter registration forms even if they are unaccompanied by proof of citizenship because the NVRA preempts Arizona’s citizenship requirement. This ruling created a dual registration system: voters can either register to vote using the federal voter registration form or the state voter registration form. 

If an Arizona voter registered using the federal form and did not provide DPOC, the voter can only vote in federal elections (they are known as “federal only” voters). If a voter registered using a state form, they were required to provide DPOC or they would not be eligible to vote in any elections. 

Republicans passed two new voter suppression laws to attempt to circumvent the Supreme Court’s ruling in Arizona v. Inter Tribal Council of Arizona.

Even with the state’s confusing dual registration system, Republicans still passed legislation based on disinformation that noncitizens unlawfully vote in significant numbers.  In 2022, former Gov. Doug Ducey (R) signed H.B. 2492 and 2243 under the guise of “election integrity.” 

Under H.B. 2492, new voters registering with federal forms must provide proof of citizenship or residency documentation if they want to vote in presidential elections or vote early by mail for any office. Voters who registered when the DPOC requirement wasn’t in effect must provide citizenship documentation to vote in presidential elections. The law also empowers the Arizona attorney general’s office to investigate voters with missing citizenship statuses. Lastly, the law requires registrants who use the state form to register to list their birthplace, information that is not material to a voter’s eligibility and not required by the federal voter registration form.  

H.B. 2243 allows for voter purges and requires the cancellation of voter registrations where county recorders have “reason to believe” are not citizens if the voter does not provide “satisfactory evidence” within 35 days of being notified.

Taken together, these laws put thousands of eligible voters’ registrations at risk, prompting pro-voting groups to file a total of eight lawsuits to block their enforcement. 

Mi Familia Vota and Voto Latino filed the first challenge to H.B. 2492 arguing that the law would severely burden Arizona voters who registered to vote when there was not a proof of citizenship requirement and could potentially disenfranchise hundreds of thousands of voters. 

Seven other lawsuits were filed in the hours, days and months after:  Living United for Change in Arizona v. Hobbs, United States v. Arizona, Poder Latinx v. Hobbs, Democratic National Committee v. Hobbs, AZ AANHPI for Equity Coalition v. Hobbs, Promise Arizona v. Hobbs and Tohono O’odham Nation v. Brnovich. 

The lawsuits challenge H.B. 2492 and 2243’s provisions under the First and 14th Amendments of the U.S. Constitution, the Materiality Provision of the Civil Rights Act, Section 2 of the Voting Rights Act (VRA) and the NVRA. The cases were all consolidated under Mi Familia Vota v. Fontes. 

Each of the lawsuits argue that these new laws will unfairly and illegally target communities of color, naturalized voters, language minority communities and Native American voters. 

One lawsuit filed on behalf of the Tohono O’odham Nation, Gila River Indian Community and individual members of the  Tohono O’odham Nation and Hopi Tribe argues that H.B. 2492’s documentary proof of residency requirement “will disenfranchise significant numbers of Native Americans by blocking Arizonans who reside in a dwelling that does not have a standard physical address assigned to it—a circumstance that is significantly disproportionately common for Native Americans across many areas of the state—from registering to vote in federal, state, and local elections.” 

Another complaint filed on behalf of the Arizona Asian American Native Hawaiian And Pacific Islander For Equity Coalition argues that “legislators who passed H.B. 2243 and are anticipating its immediate enforcement want to cancel the registrations of voters of color and naturalized voters prior to the next election.”

“The Challenged Provisions [of H.B. 2492 and H.B. 2243] will impose additional restrictions on Arizona’s already uniquely burdensome and byzantine voter registration system. No other state in the country is enforcing such draconian measures” another complaint reads. 

The Republican National Committee (RNC) intervened to defend this anti-voting scheme as did the state’s Republican legislative leadership. Now the RNC is using this case to argue that the Materiality Provision — a key provision of the Civil Rights Act that prevents votes from being discarded for trivial errors — is not privately enforceable. If this argument were to be adopted, it would mean that only the U.S. Department of Justice, and not private groups, would be able to sue over perceived Materiality Act violations.

Before the trial even began, the pro-voting plaintiffs won some key victories. 

In September 2022, H.B. 2243 was temporarily blocked for the 2022 midterm elections. This was a major victory for voters as the law was scheduled to go into effect at the end of September of 2022, which would have provided “just enough time” to purge voters who did not provide DPOC in the 35-day window before the 2022 midterm elections. As a result of this victory and ongoing litigation, neither law has been implemented.  In 2023 several provisions of these laws were blocked in a summary judgment order. 

The provision requiring documentary proof of citizenship for voters using the federal form is now blocked. Practically, this means that Arizonans who register to vote using either the federal or state form, but fail to provide documentary proof of citizenship, will be registered to vote in all elections if the county recorder can confirm they are citizens. If a county recorder cannot confirm that a voter is a citizen, but also does not establish that the voter is not a citizen, that voter will still be able to vote in federal and presidential elections — but not state elections. 

In addition, as a result of the summary judgment order, if a voter fails to check the box attesting that they are a citizen (pictured below), but provides documentary proof of citizenship, that voter will be registered to vote. If the voter does not provide documentary proof of citizenship, the application can still be rejected. 

A screenshot of Arizona's voter registration form

While the court did find that H.B. 2243’s systemic removal requirement (also known as voter purges) within 90 days of an election violates the NVRA, other provisions of H.B. 2243 will go to trial to determine if the law would result in “nonuniform,” “discriminatory” and illegal cancellations of legitimate voter registrations. 

In addition, the court sided with the Tohono O’odham plaintiffs and ordered that voters do not need to have a street address to satisfy proof of residency requirements.  The court also expanded the list of documents that can be used to satisfy residency requirements, which include using:

  • A valid unexpired Arizona driver’s license or nonoperating ID (“AZ-issued ID”), regardless of whether the address on the Arizona-issued ID matches the address on the holder’s voter registration form and even if the Arizona-issued ID lists only a P.O. Box.
  • Any tribal identification document, including but not limited to a census card, an identification card issued by a tribal government, or a tribal enrollment card, regardless of whether the tribal identification document contains a photo, a physical address, a P.O. Box or no address.
  • Written confirmation signed by the registrant that they qualify to register under H.B. 2492.  

With these major provisions struck down, several key claims will be heard at trial. 

Many important claims are going to trial. The 12-day trial will determine if the laws’ challenged provisions — which include the DPOC and DPOR requirements, the birthplace requirement and investigation and cancellation provisions — do in fact violate the U.S. Constitution, the Materiality Provision of the Civil Rights Act, the VRA and the NVRA. 

This lawsuit stands to impact thousands if not hundreds of thousands of Arizona voters and will determine if these voter suppression laws passed on the coattails of misinformation will take effect before the next election or if they will be permanently blocked.