Court finds evidence Arizona lawmakers discriminated against voters

An appeals court says there’s evidence Arizona lawmakers acted with discriminatory intent in demanding proof of citizenship from those entitled by U.S. law to vote for federal candidates without providing it.

In a 79-page ruling, the 9th Circuit Court of Appeals said federal law decides who can vote in federal elections. That supersedes legislation approved by Arizona Republican lawmakers to deny ballots to those who don’t provide citizenship proof, wrote Judge Ronald Gould for the majority.

Tuesday’s ruling affirms U.S. District Court Judge Susan Bolton’s decision made two years ago.

But the majority of the appellate court concluded something Bolton did not: That evidence shows lawmakers acted with the intent of discriminating against voters based on their race or national origin.

Moreover, Gould said, the evidence shows the lawmakers knew there was no voter fraud. That knowledge included the results of an “audit” of the 2020 election results, ordered by GOP lawmakers, that found no fraud and confirmed Donald Trump lost in Arizona that year to Joe Biden.

“Yet the Legislature proceeded to enact legislation aimed at remedying the voter fraud that was contradicted by its own findings,’’ Gould wrote.

The court sent the case back to Bolton to reconsider her conclusion there was no intentional discrimination.

A finding of intentional discrimination by itself is significant. It would make it harder for legislative leaders to argue, when the case eventually goes to the U.S. Supreme Court, that the restrictions on voting were based solely on a need to prevent voter fraud. It also opens the door to findings that the state violated other provisions of the U.S. Voting Rights Act.

There was no immediate response from Republican state Senate President Warren Petersen, a who has been part of the effort to allow the state to enforce its law demanding citizenship proof from those who want to vote only for federal candidates.

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

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

That didn’t stop Arizona from approving two 2022 laws refusing to let people vote for president without “documentary proof of citizenship.’’

Proponents argued the 2020 results — Trump lost Arizona by 10,457 votes — were affected by people who signed up to vote using that federal form. At the time there were about 21,000 Arizonans who had signed up using that form; at the moment there are nearly 49,000 people signed up as “federal only voters.’’

Another provision of the 2022 law said anyone who uses the federal form cannot vote by mail.

Lawmakers also voted to direct county recorders to conduct checks of voters they have “reason to believe’’ are not citizens.

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All that, Gould said, runs afoul of federal law.

The appellate court said there is evidence this wasn’t a simple mistake or even just an attempt by lawmakers to protect the integrity of the voting process. The judges said the legislators knew exactly what they were doing, and did it anyway.

The majority in the 2-1 decision laid out what they called the state’s “history of discrimination against minorities and of voting discrimination,’’ going back to even before it became a state with a territorial law imposing a literacy test with the explicit intent to limit the “ignorant Mexican vote.’’

Then there were wholesale purges of voter rolls in the 1970s and 1980s forcing people to reregister, a move Gould said results in fewer minority voters signing up again than white voters.

But the judge said it isn’t necessary to go back anywhere near that far to find discrimination.

He cited Trump’s 2020 loss in Arizona and the state Senate ordering its audit of the results. Even though the audit’s hand count showed Trump had lost by an even larger margin than the official tally, and found no fraud, Gould said lawmakers used the audit to claim it provided the basis for the new laws on proof of citizenship.

Bolton, in concluding there was no evidence of an intentional act to discriminate, had said challengers failed to prove Arizona lawmakers lacked sincerity in their belief that non-citizens were voting. Gould said that was the wrong test.

“In addressing an issue of voter suppression, we are not bound by questions of sincerity of legislators, but rather must look to what was actually done, and the purported reasons for and the effect of legislative action,’’ he wrote. That “cannot be determined by legislative say-so but requires a demonstration through a presentation of facts.’’

“The Legislature’s failure to show evidence of voter fraud in its audit calls into question the sincerity of its belief in the evidence of voter fraud,’’ he said.

Something else also got the attention of the appellate judges: the role of the Arizona Free Enterprise Club in the legislation. Petersen, the Senate president, has said the organization, which aligns itself with Republican interests, drafted most of the challenged voting laws.

Gould said the organization, in advocating for the laws, sent lobbying materials to lawmakers titled “How more illegals started voting in AZ.’’

“This suggests that the Free Enterprise Club — an architect and advocate of the voting laws — was motivated by a discriminatory purpose in drafting and advocating for the voting laws, which, in turn, supports a conclusion that the voting laws were the product of intentional discrimination,” the judge wrote.

The conclusion was not unanimous.

Appellate Judge Patrick Bumatay said it was wrong of the majority to overturn Bolton’s findings. He said it ignores the judicial principle that legislators are presumed to act in good faith.