SUBSCRIBER EXCLUSIVE

Arizona bill on voter registration could be challenged

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PHOENIX — Gov. Doug Ducey has signed legislation to tighten voter registration requirements in a way that may be courting a legal challenge.

House Bill 2492 requires anyone who wants to vote for president to first submit proof of citizenship. The measure, crafted by Rep. Jake Hoffman, R-Queen Creek, is aimed at individuals who have registered to vote using only the form prepared by the federal Election Assistance Commission.

That form requires only that people avow they are citizens. That differs from state laws governing state and local elections where proof of citizenship has been required since 2004.

But under federal law, those using that form are permitted to vote in federal elections, meaning the presidential and congressional races.

In 2013 the U.S. Supreme Court, rejected efforts by Arizona to impose the citizenship-proof requirement on those using the federal form. Based on that, attorneys for both the House and Senate told lawmakers that HB 2492 is unconstitutional.

That didn’t stop the Republican-controlled legislature from giving its approval and sending it to the governor. And Ducey insisted there is a “legal nuance” in that 2013 ruling that permits the state to do what is in HB 2492.

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. “This bill ensures that.”

Ducey also pronounced himself unconcerned about possible legal challenges from groups like the Arizona Civil Liberties Union of Arizona whose lobbyist testified against the measure.

“The ACLU looks for every opportunity to have a frivolous lawsuit,” he said.

The debate arose after official election results showed Joe Biden defeating Donald Trump in 2020 by 10,457 votes statewide. Among the accusations by those who have questioned the results is whether that total was affected by people who are not citizens.

Central to HB 2492 is what steps the state can take to curb voting by people who have registered using the federal form but not provided evidence of citizenship.

That number, the governor said, has been ballooning.

Ducey said in 2014 — after the Supreme Court ruling — only 21 who signed up with the federal form cast a ballot. But by 2020, the governor said that number climbed to more than 11,600.

Maricopa County listed 4,484 such ballots, with another 1,942 from Pima County.

The governor said the legislation is designed to ensure anyone using that form to vote for president is, in fact, a citizen.

“Election integrity means counting every lawful vote and prohibiting any attempt to illegally cast a vote,” the governor said in a letter to Secretary of State Katie Hobbs in sending the measure to her.

“HB 2492 is a balanced approach that honors Arizona’s history of making voting accessible without sacrificing security in our elections.”

And what of that 2013 Supreme Court ruling? That, according to Ducey, is where the “legal nuance” fits in.

He is accepting the arguments advanced by Hoffman, the sponsor of the bill, the high court was addressing only the ability of people to vote in congressional races. That, Hoffman told Capitol Media Services, is based on his belief the justices were relying on the federal constitutional provisions giving Congress the power to regulate the “times, places and manner of conducting elections for representatives and senators.”

And, in fact, nothing in HB 2492 requires citizenship proof of those who want to cast a ballot for candidates for U.S. Senate or the House of Representatives.

By contrast, Hoffman contends, the U.S. Constitution leaves it up to individual states to decide how the presidential electors — the people who actually are on the ballot — are chosen.

“This distinction has yet to be presented to the court,” he said. “So any assertion that is prima facie unconstitutional based on this provision is patently false.”

There is one other legal issue.

Prior to 1996, there was no requirement for anyone seeking an Arizona driver’s license to prove citizenship. And in 2004, when voters enacted citizenship requirements to register to vote in Proposition 200, the law was crafted so that anyone with a license issued prior to 1996 effective was “grandfathered” in and allowed to continue to use that Arizona license as citizenship proof to register.

But foes say there is no similar provision in HB 2492. And that raises the question of whether anyone with one of those pre-1996 licenses — and there are about 192,000 of them according to the Motor Vehicle Division — is going to have to now come up with separate proof to cast a ballot later this year.

Ducey, however, said he doesn’t see an issue.

“HB 2492 does not disturb the safe harbor granted to Arizona voters who registered to vote prior to Prop. 200’s passage,” he said.

The measure has separate provisions designed to deal with how election officials handle requests to register by people who still want to use the federal form to vote only in congressional races.

It directs county recorders to, on their own, search various federal and state databases to look for other evidence whether the person is or is not a citizen. If those checks verify the person is not a citizen, it requires election officials to reject the application, notify the applicant and forward the application to the county attorney or state attorney general for investigation.

If the records search turns up neither proof or disproof of citizenship, then the person has to be told he or she cannot vote in the presidential election but can cast a ballot for congressional candidates.

But even in these cases, it requires the secretary of state and each county recorder to provide a list of those for whom citizenship could not be verified and make that available by Oct. 31 -- days before the general election — to the attorney general’s office which would do it’s own search of records.

And it requires that agency to prosecute anyone who submitted a form who was not found to be a U.S. citizen.

Arizona, Ducey, voting