Biden administration: Court must stop AZ from blocking some votes for president

The Biden administration is urging the U.S. Supreme Court to spurn requests by Republican legislative leaders and their allies to block anyone who hasn’t provided proof of citizenship from voting in the presidential race.

In a new filing Friday, Solicitor General Elizabeth Prelogar told the justices that lower courts got it right when they ruled the National Voter Registration Act overrides a 2022 Arizona law that restricts who can cast a ballot for president. She said while states are free to regulate who can vote in their own elections — including what documentation they must provide — Congress alone has the authority to decide eligibility for federal elections.

She was responding to the latest legal filings by House Speaker Ben Toma and Senate President Warren Petersen along with the Republican National Committee. Strictly speaking, they do not ask for a final ruling on whether the state can restrict who can vote for president. Instead, they ask that the state be allowed to enforce the 2022 law while its legality is litigated.

That would have a real and immediate impact.

There are more than 41,000 Arizonans who registered to vote using a form authorized by the National Voter Registration Act. That form does not require proof of citizenship but does mandate an avowal, under penalty of perjury, that the individual is qualified to cast a ballot.

A ruling in favor of the Republican leaders would bar those Arizonans from voting for president this year.

That’s particularly significant because Joe Biden beat Donald Trump four years ago by just 10,457 votes in Arizona. The Republicans suggest the votes of those federal-only voters are unlikely to swing Trump’s way.

They point out in legal filings that Republicans make up about 34% of the state’s registered voters. But the latest figures from the Secretary of State’s Office show 14.3% of these federal-only voters signed up as Republicans.

Another 27.4% are Democrats, with 53.6% listed as “party not designated’’ and the balance among minor parties.

Interplay of laws

Central to all this is the interplay between the National Voter Registration Act and the 2022 law.

The former allows people to register using the federal form. The Supreme Court itself, in a 2013 ruling involving Arizona, said the state must “accept the federal form as a complete and sufficient registration.’’

In 2022 state lawmakers decided that when someone registers using the federal form, county recorders must use certain databases to verify the person’s citizenship access. If the recorder cannot verify citizenship, even for a reason like not having access to necessary databases, the person then is told he or she must provide “documentary proof of citizenship.’’

More to the point, the law says anyone who fails to provide that proof is ineligible to vote in presidential elections.

The state already has conceded it cannot bar these people from casting ballots in congressional elections. That’s because the Constitution allows Congress to dictate the “time, place and manner’’ of such races.

But Toma, Petersen and the Republican National Committee, in their own filings this past week, argue that doesn’t apply to presidential races, allowing lawmakers to impose the restriction.

Not true, Prelogar told the justices.

“This court has repeatedly recognized that Congress has power to regulate presidential elections and primaries,’’ she wrote. Consider, Prelogar said, a federal law that prohibits the use of force and threats in presidential elections, citing an 1884 case.

“The court also has upheld federal campaign finance laws that apply to presidential elections,’’ she continued, saying the justices ruled constitutional provisions allow Congress “to protect the election of the president and vice president from corruption.’’

Partisan dispute

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And then there’s the difference between state and federal elections.

“The president represents all the voters in the nation, and presidential elections implicate a uniquely important national interest,’’ Prelogar said. “Congressional regulation of presidential elections thus in no sense invades any exclusive state power.’’

If nothing else, she said the amendments to the Constitution adopted after the Civil War empowered Congress to enact the National Voter Registration Act to prohibit racial discrimination in voting.

That issue came up last year when U.S. District Court Judge Susan Bolton first blocked Arizona from enforcing the 2022law.

“Congress found that discriminatory and unfair registration laws and procedures can have a direct and damaging effect on voter participation in elections for federal office and disproportionately harm voter participation by various groups, including racial minorities,’’ the judge wrote. “It is the duty of federal, state and local governments to promote the exercise of the fundamental right to vote.’’

Multiple other filings Friday with the Supreme Court underline the partisan nature of the legal dispute.

The Arizona Republican Party, in its own legal brief, said this is a state issue because, strictly speaking, Arizonans are not voting for president. Instead, they are choosing the electors who, in turn, will vote in the Electoral College for who should be president and vice president.

“Under settled Supreme Court precedent and a historical record dating back to the Constitutional Convention, a state’s presidential electors are state officials,’’ wrote an attorney for the state GOP, Harmeet Dhillon.

And Dhillon said the Constitution gives states complete power to decide how they will appoint presidential electors.

A similar argument was made to the high court by Kris Kobach, the attorney general of Kansas, on behalf of himself and 23 other Republican attorneys general. He told the justices that barring Arizona from enforcing the 2022 law would result in “irreparable harms to Arizona’s sovereign interests.’’

On the other side of the equation, Arizona Attorney General Kris Mayes, a Democrat, filed her own arguments urging the justices to leave intact the lower court rulings barring the state from enforcing the 2022 law. She argued that changing the system now — three months before the general election — “would be destabilizing.’’

Anyway, she told the justices, it is her office and not Toma and Petersen who represent the state’s interests in federal court.

A separate filing by the state and national Democratic parties says there’s no basis for the justices to intercede now. It says those who want the justices to step in have failed to show they would suffer “irreparable harm,’’ one of the legal standards to stay the lower court rulings.

Voting by mail at issue, too

The case before the court is about more than who can cast a ballot for president.

A separate provision of the 2022 law says these federal-only registrants must cast a ballot in person and cannot vote by mail — even for the congressional races in which they are clearly entitled to vote.

Prelogar acknowledged that federal law leaves it to each state to decide whether, and to what extent, to allow mail voting.

“Having made mail voting generally available, however, Arizona may not discriminatorily withhold that option from voters who submit the federal form without accompanying documentary proof of citizenship,’’ she wrote.

There is no date for the justices to decide whether they want to consider the requests by the Republicans and, if so, whether they will allow the state to enforce the 2022 law this year.