PHOENIX — Republicans want a federal judge to let the state block those who do not provide proof of citizenship from voting in this year’s presidential election.
In new legal filings Friday, House Speaker Ben Toma, Senate President Warren Petersen and the Republican National Committee told Judge Susan Bolton they want to appeal her ruling that Arizonans who use a federal voter registration form are entitled to cast a ballot in presidential elections. Bolton voided parts of a 2022 law that says only those who provide “satisfactory evidence of citizenship’’ can vote in those elections.
Bolton’s order remains in place while the Republicans seek review by the 9th Circuit Court of Appeals. And that means the 35,273 Arizonans who used that form to register are eligible to cast ballots in November’s rerun of the 2020 election between Joe Biden and Donald Trump.
That number is particularly significant because Biden beat Trump in Arizona by 10,457 votes, entitling him to the state’s 11 electoral votes.
In his new court filing on behalf of the GOP and the state officials, attorney Thomas Basile makes no mention of the 2020 race. Instead, Basile tells Bolton she should suspend her own ruling while he asks the 9th Circuit to overturn it.
He does acknowledge that her ruling, if left intact, could make it harder for Republicans to win in November.
The request is likely to get a fight from several Hispanic civil rights groups that successfully sued to have the restriction voided.
Arizona law requires people to provide proof of citizenship to vote. That is not in dispute for state or local races.
But the National Voter Registration Act also requires the Election Assistance Commission to prepare a form that can be used to vote in federal elections. That form mandates only that applicants sign a sworn statement avowing, under penalty of perjury, they are citizens.
State Sen. Jake Hoffman, R-Queen Creek, argued in 2022 that under the Constitution, Arizona is free to set voting requirements in presidential races, “including proof of citizenship.’’
Bolton, in her ruling in September, disagreed.
“The plain language of the National Voter Registration Act reflects an intent to regulate all elections for federal office, including for president or vice president,’’ the federal judge wrote. “And binding precedent indicates that Congress has the power to control registration for presidential elections.’’
Similarly, Bolton said federal law preempts a requirement in the challenged statute that anyone who uses the federal form must provide documented proof of citizenship in order to vote by mail in any race for which they are eligible to vote.
“Congress recorded that it enacted the National Voter Registration Act not just to establish procedures that will increase the number of eligible citizens who register to vote in elections for federal office, but also to make it possible for federal, state and local governments to implement this chapter in a manner that enhances the participation of eligible citizens as voters in elections for federal office,’’ Bolton said.
In asking her to suspend enforcement of her ruling, Basile is again arguing that Bolton is wrong.
He acknowledged that the NVRA requires states to “accept and use’’ the federal form to register voters in federal elections, including presidential elections.
But he told the judge that’s irrelevant, arguing, in essence, that federal law is unconstitutional.
Basile pointed out the U.S. Constitution does allow Congress to regulate the “manner’’ of federal elections.
But he said that applies only to races for the U.S. Senate and House. In presidential races, Basile said, the Constitution is more limiting, saying Congress can only regulate the time of choosing electors and the day that they vote.
“Neither Congress nor the courts can constitutionally apply the NVRA to presidential elections,’’ he told Bolton.
Beyond that, Basile told Bolton her decision to suspend the 2022 law approved by the Republican-controlled Legislature and signed by Republican then-Gov. Doug Ducey “inflicts both sovereign and institutional harms.’’
“An injunction barring the state from conducting this year’s elections pursuing to a statute enacted by the Legislature would seriously and irreparable harm the state if the statute is ultimately determined to be valid,’’ he wrote.
There’s also a political component.
Basile, in his role of representing the Republican National Committee, told Bolton her order barring the state from limiting who can vote for president “distorts the competitive environment underpinning the 2024 election in a manner that is unfavorable to the RNC and Republican candidates.’’
He said there was evidence introduced that only 14.3% of those who signed up to vote using the federal form registered as Republicans. By contrast, Basile said, Republicans make up 34.5% of total active registered voters.
“The judicially mandated inclusion of these individuals in the presidential electorate hence necessarily impairs the relative competitive position of the Republican presidential nominee,’’ he said, saying her order allowing them to vote “alters Arizonan’s electoral terrain to the RNC’s disadvantage.’’
Hoffman, in introducing the legislation after the 2020 election, said people in the country illegally might have voted by using the federal form.
The Arizona Secretary of State’s Office says its records suggest there is no proof of that. Of those who used the form, “A majority of them are students because they don’t have their birth certificates when they get them when they go off to college,’’ said a spokesman for the office. He said the list also includes people in the military and Arizonans who are overseas.
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