PHOENIX — Republican legislative leaders and the Republican National Committee are making a last-ditch effort to put an immediate halt to anyone who has not provided proof of citizenship from registering to vote in Arizona and casting a ballot in the race between Donald Trump and Kamala Harris.
Kory Langhofer, the attorney for both GOP efforts, asked the U.S. Supreme Court to issue an emergency stay of a decision by the 9th Circuit Court of Appeals that bars Arizona from enforcing its own laws on who can register and on what races they can vote.
In his petition, Langhofer said the appellate judges got it wrong when they concluded the National Voter Registration Act overrides state laws on who can vote for presidential electors.
The petition is really a last-minute act.
Langhofer told Justice Elena Kagan, who accepts emergency petitions from Arizona and other states and territories in the region, that ballots for the Nov. 5 general election start printing in less than two weeks.
Hanging in the balance is the question of how much latitude state lawmakers have to decide who can vote for president.
Since 2004, Arizona has required newly registered voters to provide “documentary proof of citizenship.’’
The U.S. Supreme Court ruled in 2013, however, that the NVRA requires the state to accept a form designed by the federal Election Assistance Commission to register to vote in federal elections. That form does not require citizenship proof but only a sworn avowal the person is eligible to vote.
State lawmakers concede Congress has the power to pass laws pertaining to the times, places and manners of electing representative and senators. But in 2022 they approved a law denying those who registered without proof from voting in the presidential race, arguing that power is reserved for the states.
They separately voted to say that, even though those using the federal form can vote in congressional races, they have to vote in person, denied the same vote-by-mail opportunity afforded to others.
U.S. District Court Judge Susan Bolton disagreed, ruling last year the 2022 state laws is preempted by federal statutes. And she even separately concluded that those who sign up using a state form but don’t have proof of citizenship also are entitled to vote in federal races, based on a consent decree in a different federal case.
That leaves the challengers — Republican legislative leaders and the Republican National Committee — with only one remedy before the general election: convince the Supreme Court to at least dissolve the injunction and let the state enforce its requirements this year.
Most immediately affected could be the 41,128 people who already are registered without providing proof of citizenship. By comparison, Biden beat Trump in 2020 by 10,457 votes.
That, however, is just a piece of the picture.
The justices could, for the time being, leave intact the existing registrations.
But data provided to Capitol Media Services shows that people have been signing up as federal-only voters since April at a rate close to 2,000 a month. And that was before the entrance of Harris into the race boosted the excitement level in a contest that, for the moment, has her in a statistical dead-heat with Trump.
“The court’s immediate intervention is necessary here,’’ Langhofer told the court.
House Speaker Ben Toma and Senate President Warren Petersen say the 9th circuit ruling — the one they want the high court to overturn — interferes with the “sovereign authority (of the state) to determine the qualifications of voters and structure participation in its elections.
The Republican National Committee, which also has interceded to restore the proof-of-citizenship requirement, is making its own arguments why its interests will be harmed if the Supreme Court does not take up the case and let the state enforce all of its rules on registration.
And at least some of that is political.
Langhofer cites data that he said actually comes from those who support the right to cast a ballot regardless of citizenship documentation: 14.3% of federal only voters are registered as Republicans while GOP registration in Arizona is 34.5% of the more than 4.1 million who have signed up to vote.
“Because elections, like admissions, are zero-sum, a benefit provided to one but not to other necessarily advantages the former at the expense of the latter,’’ he wrote.
“The district court’s order requires including individuals in the presidential electorate who have failed to satisfy the minimum state-law requirements to confirm their identity and citizenship,’’ Langhofer said. “That illegally structured competitive environment harms the RNC.’’
RNC Chairman Michael Whatley, in a news release, went a step beyond.
“This application to the Supreme Court is pivotal to ensuring that Arizonans’ votes are not canceled by non-citizens,’’ he said. “Non-citizen voting is illegal and we are taking very possible action to ensure American elections are decided solely by Americans.’’
So far, though, there has been no evidence presented in this case, either by the Republican lawmakers or the RNC, that those who use the federal form or sign up without proof of citizenship are, in fact, not citizens. The form also can be used by those who do not have easy access to things like a birth certificate, including the elderly and students who may be away from home at college when the turn 18.
In Pima County which has 8,223 federal-only voters, Recorder Gabriella Cázares-Kelly has questioned the presumption that elections are being influenced by illegal votes.
“Reality has proven that as a general rule, those who are not citizens do not register to vote,’’ she said in responding to queries by another Republican-aligned group over procedures taken by her office to keep the rolls as free as possible of those not legally entitled to vote. “In rare cases where someone who is not eligible actually attempts to register to vote, there are safeguards and laws to ensure that only eligible persons can vote.’’
