U.S. sues Arizona over new proof-of-citizenship law for voting

PHOENIX — The U.S. Department of Justice is asking a federal judge to block Arizona from enforcing a new law about who can vote for president.

In a lawsuit filed Tuesday, the agency contends Arizona has no legal right to demand proof of citizenship from those who use a federal voter registration form. The new rule runs afoul of the National Voter Registration Act, said Assistant Attorney General Kristen Clarke, who heads the agency’s civil rights division.

Clarke also said the state is a “repeat offender,’’ approving the requirement earlier this year in House Bill 2492 despite a 2013 U.S. Supreme Court ruling to the contrary.

She said the problems with HB 2492 go deeper.

The legislation imposes some new requirements on everyone who registers, requirements DOJ — and federal law — consider illegal because the information is not “material’’ to whether someone is eligible to vote, Clarke said.

Most notably, the new law, set to take effect at the end of the year, says voter registration forms must include an individual’s place of birth.

“Prior to HB 2492, Arizona voter registration forms did not require applicants to provide their specific city or location of birth — and for good reason,’’ Clarke told reporters Tuesday in a telephonic news conference.

“That information is not material to establishing whether a voter is a U.S. citizen because of naturalization and expatriation patterns, among other reasons,” she said.

GOP supporters of law respond

Arizona Attorney General Mark Brnovich lashed out at the Department of Justice for pursuing the case.

“In addition to free rooms and transportation for those illegally entering our country, the DoJ now wants to give them a chance to vote,’’ Brnovich, a Republican, said in a prepared statement Tuesday. “I will see you in court — again,” he said, noting he has done legal battle with the Biden administration multiple times.

State Rep. Jake Hoffman, R-Queen Creek, who sponsored the legislation, said the lawsuit “ignores the Constitution.’’

He said Congress is allowed to pass laws pertaining to the times, places and manners of electing representatives and senators.

“The Constitution gives no such power (by Congress) over presidential elections,’’ Hoffman argued, saying that power is reserved to the states.

That means Arizona is free to set voting requirements in presidential races, including proof of citizenship, he said.

However, that question of whether the legislation is legal or constitutional is now in the hands of U.S. District Court Judge Susan Bolton.

Hoffman’s legislation stemmed from an allegation by Donald Trump supporters that people who were not legally in this country went to the polls in the 2020 presidential election and cast ballots, which they claim may have affected the outcome in which Joe Biden won Arizona by 10,457 votes.

Hoffman said about 21,000 Arizonans have signed up to vote using not the state registration form, which has a proof-of-citizenship requirement, but the form prepared by the Election Assistance Commission. That form, which entitles registrants to vote only in presidential and congressional races, mandates only that applicants sign a sworn statement avowing, under penalty of perjury, they are in fact citizens.

“This bill does nothing other than to ensure that non-citizens are not voting in Arizona elections and American elections, which I might say one could classify non-citizens voting as foreign influence in our elections,’’ Hoffman told colleagues.

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Conflict with high court decision

Clarke said the federal lawsuit should come as no surprise to Hoffman or the Republican lawmakers who voted for the legislation.

“HB 2492 is in direct conflict with the 2013 U.S. Supreme Court decision,’’ Clarke said. That decision struck down Arizona’s Proposition 200, a 2004 measure requiring people to provide citizenship when they register to vote.

In the 7-2 decision, Justice Antonin Scalia said the state law was preempted by the National Voter Registration Act. He pointed out that law requires states to “accept and use’’ the federal form.

Clarke said attorneys for the Legislature “warned legislators’’ federal law preempts a requirement for proof of citizenship for those registering with the federal form to vote in federal elections.

“Nonetheless, the Legislature ignored these warnings and enacted HB 2492 anyway,’’ she said.

As to the place-of-birth requirement, Clarke said it violates the 1964 Civil Rights Act.

“This law prohibits election officials from denying the right of any individual to vote in any election because they made an error or omission that is not material in determining whether they are qualified to vote in that election,’’ she said.

Clarke cited a 2003 ruling by a federal appeals court that Congress enacted the “materiality provision’’ to “address the practice of requiring unnecessary information for voter registration.’’ The court said that would increase the number of errors someone could make on the form, which would increase the number of errors or omissions, “thus providing an excuse to disqualify voters.’’

Hoffman, however, said the contention by the Department of Justice that Arizona has not required would-be registrants to provide a place of birth is “patently false.’’ He pointed out that the state voter registration form provided by the Secretary of State’s Office does ask “state or country of birth.’’

‘Ugly history’ of disenfranchising

While Brnovich and Hoffman lashed out at the Department of Justice, that wasn’t the response of Secretary of State Katie Hobbs who, as the state’s chief election officer, is the named defendant.

“I made it clear from the start that I did not think this law was constitutional, or good policy,’’ said Hobbs, a Democrat.

In his own statement, House Minority Leader Reginald Bolding, D-Laveen, said Arizona has “an ugly history’’ of disenfranchising Indigenous voters and other voters of color.

“We warned the governor that he was writing a sad new chapter in that history by embracing the Big Lie and signing this bill,’’ he said in a prepared statement.

Republican Gov. Doug Ducey had not immediate comment, said his press aide C.J. Karamargin.

In March, however, in signing the measure, Ducey said he accepted Hoffman’s argument that there is a “legal nuance’’ that allows the state to seek citizenship proof in presidential contests that it cannot seek in congressional races. He said it’s also the right thing to do.

“I believe voter ID is Step 1 of being able to vote, and proof of citizenship along with that,’’ the governor said at the time. “This bill ensures that.’’

Bolton has set no date for a hearing.