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Election 2024

Arizona Republicans again seek to bar federal form use in voting for president

Posted 5/18/24

PHOENIX — Republicans want a federal judge to let the state block those who do not provide proof of citizenship from voting in this year’s presidential election.

In new legal filings …

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Election 2024

Arizona Republicans again seek to bar federal form use in voting for president


PHOENIX — Republicans want a federal judge to let the state block those who do not provide proof of citizenship from voting in this year’s presidential election.

In new legal filings Friday, attorney Thomas Basile told U.S. District Judge Susan Bolton that House Speaker Ben Toma, Senate President Warren Petersen and the Republican National Committee, whom he represents, want to appeal her ruling that Arizonans who use a federal voter registration form are entitled to cast a ballot in presidential elections.

More to the point, the judge voided parts of a 2022 statute that says only those who provide “satisfactory evidence of citizenship” can vote in those elections.

Only thing is, her order remains in place while the Republicans seek review by the 9th Circuit Court of Appeals. That means the 35,273 Arizona who used that form to register are eligible to cast ballots in the rerun of the 2020 election between Joe Biden and Donald Trump.

What makes that number particularly significant is that Biden beat Trump in Arizona by 10,457 votes, entitling him to the state’s 11 electoral votes.

In his new court filing on behalf of the GOP and the state officials, Basile makes no mention of the 2020 race. Instead, Basile tells Bolton he believes she got it wrong and should stay her own ruling while he asks the 9th Circuit to overturn it.

But he does concede her ruling, if left intact, could make it harder for Republicans to win in November.

The request is likely to get a fight from several Hispanic civil rights groups who successfully sued to have the restriction voided.

State law requires people to provide proof of citizenship to vote. That is not in dispute for state or local races.

But the National Voter Registration Act also requires the Election Assistance Commission to prepare a form that can be used to vote in federal elections. And that form mandates only that applicants sign a sworn statement avowing, under penalty of perjury, they are in fact citizens.

Sen. Jake Hoffman, R-Queen Creek, who was a representative at the time, said that “ignores the Constitution.” He said Congress is allowed to pass laws pertaining to the times, places and manners of electing representatives and senators.

“The Constitution gives no such power (by Congress) over presidential elections,” Hoffman argued in 2022, saying that power is reserved to the states. And that, he said, means Arizona is free to set voting requirements in presidential races, including proof of citizenship.”

Bolton, in her ruling in September, disagreed.

“The plain language of the National Voter Registration Act reflects an intent to regulate all elections for federal office, including for president or vice president,” she wrote. “And binding precedent indicates that Congress has the power to control registration for presidential elections.”

Similarly, Bolton said federal law preempts a requirement in the challenged statute that anyone who uses the federal form must provide documented proof of citizenship in order to vote by mail in any race for which they are eligible to vote. She said that’s not what the federal law says.

“Congress recorded that it enacted the National Voter Registration Act not just to establish procedures that will increase the number of eligible citizens who register to vote in elections for federal office, but also to make it possible for federal, state and local governments to implement this chapter in a manner that enhances the participation of eligible citizens as voters in elections for federal office,” Bolton said.

In asking her to stay her ruling, Basile is again arguing that Bolton is wrong.

He acknowledged the NVRA requires states to “accept and use” the federal form to register voters in federal elections. And that, said Basile, includes the presidential race.

But he told the judge that’s irrelevant, arguing, in essence, that federal law is unconstitutional.

Basile pointed out the U.S. Constitution does allow Congress to regulate the “manner” of federal elections. But he said that applies only to races for the U.S. Senate and House. In presidential races, Basile said, the Constitution is more limiting, saying Congress can only regulate the time of choosing electors and the day that they vote.

“Neither Congress nor the courts can constitutionally apply the NVRA to presidential elections,” he told Bolton.

Beyond that, Basile told Bolton her decision to suspend the 2022 law approved by the Republican-controlled Legislature and signed by then-Gov. Doug Ducey “inflicts both sovereign and institutional harms.”

“An injunction barring the state from conducting this year’s elections pursuing to a statute enacted by the Legislature would seriously and irreparable harm the state if the statute is ultimately determined to be valid,” he wrote.

Basile, in his role of representing the Republican National Committee, told Bolton her order barring the state from limiting who can vote for president “distorts the competitive environment underpinning the 2024 election in a manner that is unfavorable to the RNC and Republican candidates.”

He said there was evidence introduced that only 14.3% of those who signed up to vote using the federal form registered as Republicans. By contrast, Basile said, Republicans make up 34.5% of total active registered voters.

“The judicially mandates inclusion of these individuals in the presidential electorate hence necessarily impairs the relative competitive position of the Republican presidential nominee,” he said, saying her order allowing them to vote “alters Arizonan’s electoral terrain to the RNC’s disadvantage.”

Hoffman’s legislation was one of several dozen measures introduced in the 2022 legislative session closely linked to the “Stop the Steal’’ movement that insists that Donald Trump actually outpolled Joe Biden in Arizona.

Most of those efforts were based on various claims, all unproven, that the election process itself was flawed, with everything from fake ballots being injected into the system to tabulation equipment being reprogrammed by outside sources. Some have remained unconvinced despite an independent review conducted by Maricopa County which found that its counting machines were never connected to the internet.

This measure specifically stems from the idea people not in this country legally went to the polls and cast ballots, a contention by Trump supporters that may have affected the outcome which gave the victory to Biden.

What could have enabled that, Hoffman said at the time, is that about 21,000 Arizonans signed up to vote using not the state registration form, which has a proof-of-citizenship requirement, but the form prepared by the Election Assistance Commission, which entitles registrants to vote only in presidential and congressional races, mandates only that applicants sign a sworn statement avowing, under penalty of perjury, they are in fact citizens.

On signing the measure, Ducey said he accepted Hoffman’s argument there is a “legal nuance” that allows the state to seek citizenship proof in presidential contests that it cannot seek in congressional races. He said it’s also the right thing to do.

“I believe voter ID is Step 1 of being able to vote, and proof of citizenship along with that”’ the governor said at the time. “This bill ensures that.”

But the Secretary of State’s Office says current records they have suggest there is no proof these federal registration forms are being used by those who are in this country illegally.

“A majority of them are students because they don’t have their birth certificates when they get them when they go off to college,” said a spokesman for the office. He said that list also includes people in the military and Arizonans who are overseas.