Feds: Arizona could face lawsuit over voter ID law

PHOENIX — The Biden administration is planning to sue Arizona over a new state law that requires proof of citizenship to vote for president.

Kristen Clarke, the assistant attorney general of the civil rights division of the Department of Justice, said she has authorized going to court over what she contends is a violation of the 1964 Voting Rights Act. The only thing that would stop that, Clarke said in a letter to Attorney General Mark Brnovich, is if the state is willing to settle the issue, presumably by an agreement not to enforce the law.

Brnovich responded Friday telling Clarke, in essence, he will see her in court.

This is about more than simply protecting the state’s right to ensure that only citizens vote in elections, he said. There is reason to believe all this is part of some larger scheme by some, including “neo-Marxists” to allow people not in this country to influence elections, Brnovich said.

The legal issues however, may not be as clear as Brnovich contends, with two conflicting laws.

The first is the 2004 requirement approved by Arizona citizens for proof of citizenship to register to vote. That applies to state voter-registration forms.

Against that is the National Voter Registration Act which allows people to register to vote using a federal form. And that form requires registrants to only avow, under penalty of perjury, that they are citizens.

State officials initially refused to accept federal forms without citizenship proof.

In 2013, however, the U.S. Supreme Court concluded that Arizona is free to require citizenship proof on its own forms. But the justices said the state cannot refuse to accept the federal form, though it can restrict those who use those forms and do not also provide proof of citizenship to voting only on federal races, meaning for president and members of Congress.

That ruling went pretty much unchallenged until the 2020 election when Joe Biden outpolled Donald Trump in Arizona by 10,457 votes. That led to claims by those unhappy with the outcome that the results were influenced by the approximately 12,000 people who used that federal form.

There is, however, no proof of that — or even that everyone who used the federal form two years ago was not a citizen but simply chose the simpler registration method.

That resulted in HB 2492, signed March 30 by Gov. Doug Ducey, which says that votes for president will be counted only from people who provide proof of citizenship or the state is otherwise able to verify their citizenship.

Rep. Jake Hoffman, R-Queen Creek, who authored the legislation, contends that 2013 ruling applies only to congressional races. And that, he said, means the state is free to impose its citizenship requirements for presidential race.

But Clarke, in her letter to Brnovich, said what's in HB 2492 violates the National Voter Registration Act which requires Arizona to "accept and use'' a completed federal voter registration form to let people vote in all federal elections.

"Such applicants need not provide additional documentation to prove their citizenship,'' she wrote.

Clarke said there are other problems with the legislation, like adding a new requirement to the state’s own voter registration form for applicants to identify where they were born.

“Requirements such as these are not material to establishing a voter’s eligibility to vote,” she wrote. “They therefore violate federal law.’’

Brnovich noted that the Supreme Court, in its 2013 ruling, did say Arizona can ask the Election Assistance Commission, which prepares the federal registration form, to add a proof-of-citizenship requirement. The state did try that, but without success.

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So Brnovich said he believes that frees state lawmakers to enact a “common-sense election integrity measure.” And he said he’s prepared to fight it in court.

“I believe it will withstand constitutional scrutiny,” he said.

There already are three lawsuits pending in federal court challenging the law.

In one, Daniel Arellano representing Mi Familia Vota, is urging the court to reject arguments that HB 2492 is needed to prevent people who are not citizens from voting.

“The unsupported fear-mongering is plainly insufficient to justify the proof-of-citizenship restrictions widespread burdens,” he wrote.

Brnovich, however, said it’s legally irrelevant that there is no evidence that people who are not citizens are using the federal form to influence elections in Arizona.

He pointed out that lack of proof of a problem was one of the arguments presented to the Supreme Court last year by groups challenging state laws which make it a felony in most cases for an individual to take someone else’s voted early ballot to a polling place. The high court wasn’t buying that.

“It should go without saying that a state may take action to prevent election fraud without waiting for it to occur and be detected within its own borders,” wrote Justice Samuel Alito for the majority. He said the provisions of the Voting Rights Act that the political process remain equally open “does not demand that a state’s political system sustain some level of damage before the legislature can take corrective action.’’

“You don’t have to have the proverbial horse leave the barn before you lock the barn,” Brnovich said.

The attorney general, who is a Republican candidate for U.S. Senate, also said he believes there is something political in the move by the Department of Justice trying to quash the citizenship requirement.

He said it is “not unreasonable” to believe this is part of a larger plan by what he called “neo-Marxists’’ to “implement as many far-Left ideas as possible, including allowing non-citizens vote and influence the outcome of elections.

Brnovich cited an effort by New York City to let approximately 800,000 people who are permanent legal residents and those with authorization to work in the United States to vote for mayor and city council. That was struck down this past week by a state judge who said it violated the New York Constitution.

Aside from the Mi Familia lawsuit, in a separate case attorney James Barton outlined his own arguments against HB 2492.

“No other states in the nation has abridged the fundamental right to vote for eligible voters in such a manner,” wrote Barton. He represents Living United for Change in Arizona, the League of United Latin American Citizens, the Arizona Students’ Association, and ADRC Action which is the sponsor of a ballot measure to reverse a host voting restrictions already enacted by the Republican-controlled legislature and signed by Ducey.

And Daniel Adelman, representing the Arizona Center for Law in the Public Interest, said the new law will result in the “inaccurate, arbitrary, discriminatory, and ultimately unlawful treatment of naturalized voters throughout Arizona.”

Adelman said that they may be erroneous flagged as not here legally “based on old and inaccurate data, subjected to unwarranted extra scrutiny, unlawfully removed from the rolls, and even prosecuted.”

All three cases — along with whatever the Department of Justice filed — are likely to be consolidated to be heard by U.S. District Court Judge Susan Bolton. No date has been set for a hearing.