By Howard Fischer
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PHOENIX — The state’s top Republican lawmakers can’t avoid having to answer questions about their backing of legislation making it more difficult to register to vote.

Without comment, the U.S. Supreme Court on Monday rejected a claim by House Speaker Ben Toma and Senate President Warren Petersen that any inquiries into the background of how 2022 legislation became law runs afoul of legislative privilege. The justices did not explain their decision.

But it is in line with prior rulings by the trial judge who is hearing the claim regarding the two laws being challenged by several voting and civil rights groups as well as the U.S. Department of Justice.
They contend the laws were enacted with “discriminatory intent.”

And they sought to question the pair to buttress their arguments.
U.S. District Court Judge Susan Bolton said that makes the questions Petersen and Toma don’t want to answer relevant.

“The information sought in discovery does in fact ‘go to the heart’ of plaintiffs claim and the constitutionality of the voting laws,” she wrote in her order compelling them to comply, the order that the Supreme Court on Monday refused to disturb. “Motive is often most easily discovered by examining the unguarded acts and statements of those who would otherwise attempt to conceal evidence of discriminatory intent.”

“I will comply,” Petersen told Capitol Media Services.

There was no comment from Toma.

At the heart of the case are two separate measures approved by the Republican-controlled Legislature.

One sought to limit who can vote for president.

Bolton already ruled that provision is illegal, saying state laws requiring proof of citizenship to cast a ballot in the presidential race are trumped by the National Voter Registration Act. But she has yet to rule on several issues that remain.

One would require county recorders to forward to the attorney general the names of people who are suspected of trying to register without being citizens. Challengers say that referral can be based solely on the inability of the recorder to locate these names in certain specific databases. And they say the use of these databases “amount to intentional race, national origin, and alienage discrimination.”

Also yet to be decided is the legality of a new requirement for people to provide documentary proof of residency, above and beyond what already was necessary.

Lawyers for the challengers laid out a series of issues they want to discuss with Petersen and Toma ahead of the upcoming trial
One is any instances the Legislature has identified, was aware of, or was provided evidence of someone who is not a U.S. citizen having registered to vote “which supported the introduction, passage, and/or enactment of the challenged laws.” Ditto about any non-U.S. citizen actually having voted.

They also want to know whether lawmakers considered if the laws would impact certain groups of voters more than others, including racial or ethnic groups, naturalized citizens, disabled voters, or voters in any particular age group.

Also sought are any communications between members of the Legislature with outside groups, including the Free Enterprise Club, which backed the restrictions, regarding the purpose or potential effects of the laws.

They also want to know “the objectives motivating the Arizona Legislature’s introduction, passage and enactment of the challenged laws, as well as any state interest believed to be advanced by the challenged laws.”

What makes all that critical is the success or failure of constitutional challenges to voting and similar laws often can turn on whether they were enacted “with discriminatory intent.” And in this case, the groups seeking to void the laws — including the U.S. Department of Justice — contend what was behind the changes “amount to intentional race discrimination in voting.”

None of this would have become an issue and reached the Supreme Court had Petersen and Toma stayed out of the case. In fact, neither were defendants as the challenged laws were being defended by Mark Brnovich. He was the Republican attorney general when the lawsuit was filed.

But Democrat Kris Mayes, who took office in January, said she was not interested in defending some aspects of the law. So the two GOP leaders got permission from Bolton to intervene and become defendants.

That new status, however, provided the legal basis for challengers to ask them to answer certain questions. And Bolton, in her initial ruling, said what they seek to discover is relevant.

Attorneys for the pair said in their legal filings they already have produced more than 90,000 pages of documents and answers to written questions. But they refused to provide some other documents — the petition to the Supreme Court does not say how many — and declined to answer other questions arguing all that infringed on legislative privilege.

But lawyers for the GOP lawmakers, in seeking high court relief, gave a hint of what they don’t want to disclose. They said leaving Bolton’s decision undisturbed could result in challengers questioning “not only their participation in the legislative process, but also private conversations with other legislators or third parties about the voting laws.”

Bolton, in rejecting the bids by Petersen and Toma to avoid being questioned, said there was a simple way for the pair to avoid being question. She said they could simply have stayed out of the case.
Instead, she said, they made the voluntary decision to intervene, even though the law already is still being defended, at least in part, by the Attorney General’s Office. And in doing so, Bolton said, they made themselves active participants in the litigation.

Not true, attorneys for the GOP leaders are telling the appellate judges. And, if nothing else, they said what challengers want is shielded by “legislative privilege.”

In its broadest sense, it protects lawmakers from being sued over statements they make during debate. But it also has sometimes been applied to shield them from having to discuss their deliberative process or motives.