PHOENIX — Republican state lawmakers are pushing to reopen a legal issue on which the U.S. Supreme Court ruled against Arizona nine years ago.
And their own attorneys are telling them they’re likely to lose again.
Legislation that has been approved on a party-line vote by both the House and Senate would require election officials to try to verify the citizenship of anyone seeking to register to vote using a form provided by the federal Election Assistance Commission. And if there is no corroboration, or the person doesn’t provide proof, they cannot cast a ballot for president.
At the very least, that would affect more than 31,000 people in Arizona who are registered using the federal form.
The Supreme Court has previously rejected pretty much precisely what lawmakers are trying to do. And even Jennifer Holder, the attorney for the House Rules Committee, told lawmakers the measure is illegal and the state would be courting a new lawsuit.
The staff attorney in the Senate provided the same advice.
But that’s only part of the problem.
The wording of the measure says that anyone who wants to vote in any race at all must first provide proof of citizenship. And that could force many Arizonans who have been voting for years without problems to start digging around for a birth certificate or other acceptable documentation.
That’s related to driver’s licenses. In general, they are considered proof of citizenship to register to vote.
Only thing is, that citizenship proof to get a license wasn’t required until 1996. So any license originally issued before then does not mean the holder is a citizen.
The Motor Vehicle Division says about 192,000 individuals who have one those pre-1996 licenses and haven’t re-registered since and provided proof of citizenship. They all could have their voter registrations purged.
Rep. Jake Hoffman, R-Queen Creek, the author of HB 2492, told Capitol Media Services that it is legal, even with that 2013 U.S. Supreme Court decision — and the opinion of the House and Senate attorneys — to the contrary.
He also said that the issue of those with pre-1996 licenses affects the voting ability only those people who use the federal voter registration form, not everyone else.
But the Citizens Clean Elections Commission says that is far from clear.
In a letter to Gov. Doug Ducey, all five commissioners — Republican, Democratic and independent — pointed out that when voters adopted proof-of-citizenship requirements in 2004 they specifically said that anyone already registered did not have to re-register and provide proof of citizenship, until they moved from one county to another. That precluded disenfranchising everyone who already was on the voter rolls.
But Tom Collins, the commission’s executive director, said Hoffman did not include that same kind of provision in HB 2492. That, he said, suggests that lots of Arizonans who are still driving on licenses first issued in 1996, before there was proof of citizenship, will find themselves disenfranchised.
Hoffman, however, disputes that contention.
The legislation is closely linked to the “Stop the Steal” movement that continues to insist Donald Trump won in Arizona. It’s based on various claims, all unproven, that the elections process itself was flawed, with everything from fake ballots being injected into the system to tabulation equipment being reprogrammed by outside sources. And some are unconvinced despite findings this past week that the counting machines in Maricopa County were never connected to the internet.
This legislation, however, stems from the idea that people not in this country legally voted and might have influenced the official election outcome showing Biden won Arizona by 10,457 votes.
The tally from Maricopa County found that 4,484 ballots were cast by people who were entitled to vote only in federal races because they had not proven citizenship. There were another 1,942 ballots from Pima County.
And even assuming none of those actually were citizens who simply chose to register with the federal form, and assuming that all of them had voted for Trump, that would not have been enough to change the outcome.
Hoffman, in pushing the bill through the House, said the measure has merit.
“This bill does nothing other than to ensure that noncitizens are not voting in Arizona elections and American elections, which I might say one could classify noncitizens voting as foreign influence in our elections,” he said.
But that gets to the question of whether his solution is legal.
In its 2013 ruling, the U.S. Supreme Court said Arizona remains free to enforce its 2004 law and demand proof of citizenship from those wanting to vote in state and local elections.
But the justices said that Congress, in enacting the National Voter Registration Act, clearly intended to allow people who use a form created by the Election Assistance Commission to vote in races for federal offices. That form requires only an avowal of citizenship.
The House and Senate attorneys said the legislation absolutely conflicts with that ruling.
That didn’t seem to matter to the Republicans who decided to approve it anyway. And Speaker Pro-tem Travis Grantham, R-Gilbert, seems anxious to provoke yet another lawsuit.
“We fight for local control of our elections,” he said in voting for the measure despite the opinion of the House attorney.
“Yet when there’s an overreach by the federal government we’re willing to accept it because they’re allowed to preempt us because this court says this,” Grantham said. “I think this is a fight worth having. I may lose.”
Hoffman said he doesn’t think that would be the outcome.
“HB 2492 is an incredibly well-crafted piece of legislation that is on sound legal footing and broadly supported by voters of all political parties,” he said. Nor is he worried about a litigation.
“I am confident that should Democrats challenge HB 2492 in court it will only serve to further reinforce its clear constitutionality,” Hoffman said.
And he contends that the 2013 court ruling requires only that those using the federal form be allowed to vote for members of Congress.
But Hoffman said the U.S. Constitution gives the legislature power to decide how presidential electors are chosen. And that, he said, leaves Arizona free to decide that only those people who can prove citizenship can vote in presidential races.
“This distinction has yet to be presented to the court,” he said. “So any assertion that (HB 2492) is prima facie unconstitutional based on this provision is patently false.”
The measure is now headed to Ducey. His press aide said the governor does not comment on legislation until he has a chance to review it.
