Election Citizenship Requirement Hit With Lawsuit A Day After Being Signed Into Law

(Photo by jamelah e./Creative Commons)

A federal lawsuit has been filed against Arizona’s new proof of citizenship election law, less than 24 hours after Gov. Doug Ducey signed the legislation.

Phoenix-based Mi Familia Vota is suing Arizona Secretary of State Katie Hobbs, Arizona Attorney General Mark Brnovich, and all 15 county recorders in an effort to obtain an injunction preventing several provisions of House Bill 2492 from taking effect later this year. The lawsuit also seeks a declaration that the provisions are unconstitutional.

HB2492 was introduced by Rep. Jake Hoffman to address concerns that non-U.S. citizens are registered to vote in Arizona, many as Federal Only Voters who can cast ballots for U.S. Senate, U.S. House of Representatives, and President without verification of their citizenship status.

Hoffman’s bill established new election laws to require proof of U.S. citizenship for new voter registrations and mandates that Federal Only Voters cast ballots in person instead of utilizing early voting by mail options. Another provision addresses efforts to verify citizenship for roughly 220,000 of Arizona’s more than 4.3 million currently registered voters.

Ducey signed the legislation on Wednesday, heralding it as a way to codify the steps county recorders must take to ensure voters in Arizona provide documentary proof of citizenship to vote in a presidential election and to vote by mail. On Thursday, Mi Familia Vota filed its 22-page lawsuit in U.S. District Court in Phoenix.

Hobbs is named in her capacity as Arizona’s statutory chief election officer, while Brnovich is named as the state’s chief legal officer authorized to enforce Arizona’s election laws. Both are required under the new law to perform specific duties in connection to voter citizenship records.

The county recorders are also named in their official capacities because HB2492 mandates they undertake specific actions when processing voter registration applications.

According to Mi Familia Vota, the Proof of Citizenship Requirement of HB2492 “is an entirely illegitimate and unconstitutional roadblock erected in the path of lawful, eligible voters” which will disenfranchise “eligible, lawful voters in violation of the First and Fourteenth Amendments.”

Mi Familia Vota describes in the lawsuit what it calls Arizona’s “long and complex history of applying different registration and voting requirements to different voters,” which resulted in the State being sued in federal court twice in the last decade. Both lawsuits led to changes to Arizona’s voter registration process depending on whether someone uses a State or Federal registration form.

In 2004, Arizona voters adopted Proposition 200 which amended the state’s election code to require county recorders to reject voter registration applications not accompanied by satisfactory evidence of U.S. citizenship.

A legal challenge (Arizona v. Inter Tribal Council of Ariz., Inc.) which followed argued that Prop 200 conflicted with the National Voter Registration Act that requires states to “accept and use” a Federal voter registration form even though it does not require documentary proof of citizenship. States, however, could still develop their own registration forms and rules.

In 2013, the U.S. Supreme Court ruled the National Voter Registration Act prevented Arizona from mandating those who used the Federal form to provide more information that what the form required. Those applicants could be prevented from voting in state and local elections but had to be registered as Federal Only Voters.

Then in 2017, another federal lawsuit (LULAC v. Reagan) challenged the fact that Arizonans using the State form without providing proof of citizenship were not being registered to vote for any election, while Federal form users at least became Federal Only Voters. That lawsuit also addressed the fact the State of Arizona’s driver license database could be utilized by county recorders to easily verify the citizenship of most people registering to vote.

As a result, a federal judge approved a Consent Decree in 2018 which requires Arizona’s county recorders to register otherwise eligible State form applicants as Federal Only Voters if they can’t vote in all elections. In addition, the state’s motor vehicle database must be reviewed for proof of citizenship.

What has resulted, Mi Familia Vota argues, is “a byzantine system” of three classes of voters in Arizona: those who can vote in all elections because they registered pre-2005 without showing documentary proof of citizenship (DPOC) because Arizona did not require it; those who can vote in all elections because they registered post-2005 with either the State or the Federal registration form and showed adequate DPOC; and those who can only vote in federal elections because they registered post-2005 with a Federal form without proof of citizenship.

There are currently about 31,000 Federal Only Voters in Arizona and another 192,000 or so registered voters who provided a pre-1996 driver’s license as identification when registering to vote – drivers licenses which were issued before proof of citizenship was required.

Mi Familia Vota contends the language of HB2492 could impact many voters who registered to vote before 2005, and most likely everyone who registered before 1996. But the new law provides no direction for how long-registered voters will be informed that they must now provide citizenship documents, the lawsuit contends.

The group also challenges a provision of HB2492 which prohibits Federal Only Voters from utilizing vote by mail options. According to the lawsuit, those voters have been entitled since 1991 to vote by mail in any elections for which they are qualified.

“To now suddenly strip these registered voters of their ability to vote by mail without any notice substantially burdens their fundamental right to vote,” the lawsuit argues.

Another provision “requires” the Arizona Attorney General to prosecute anyone who registers to vote if determined to not be a U.S. citizen. Whether that language is only for new applicants or could be applied to those who previously registered to vote is unclear, even if the person never voted.

The biggest change, according to the lawsuit, is that a county recorder would be prohibited from registering a Federal Form applicant if the recorder cannot verify the person’s citizenship via various databases. Such provisions essentially do away with the Federal Only Voter option, which could run afoul of the 2018 Consent Decree.