Supreme Court grants GOP bid to require citizenship proof for some Arizona voters

The U.S. Supreme Court on Thursday delivered a mixed ruling on a controversial Arizona voting law.

The Republican National Committee had asked the court to put a pause on a lower court ruling against the 2022 law. And in a 5-4 decision, the high court granted part of that request, allowing Arizona to enforce — for now — a section that requires election officials to reject state voter registration forms that are submitted without an applicant’s proof of U.S. citizenship. That provision will remain in effect as an appeal proceeds.

But the court rejected other aspects of Republicans' request that could have blocked tens of thousands of currently registered voters from voting in this fall’s presidential election.

The order from the conservative-majority high court is part of a legal fight over voter registration requirements in the key swing state, where in 2020, President Biden defeated former President Donald Trump by slightly over 10,000 votes.

The ruling comes just weeks before voting starts in what is expected to be a close presidential election — and amid a growing GOP push for voters to show proof of their citizenship when signing up to cast a ballot in federal elections, which many election experts warn could make voting more difficult for many eligible voters.

Two dozen Republican state attorneys general, led by Kansas Attorney General Kris Kobach and West Virginia Attorney General Patrick Morrisey, backed the RNC’s emergency request to the Supreme Court with a friend-of-the-court brief.

In a statement, RNC Chairman Michael Whatley called the Supreme Court’s ruling “a major victory for election integrity that upholds a simple principle: American elections must be decided by American citizens.”

Studies have shown that noncitizen voting in state and federal elections remains vanishingly rare.

Arizona Democratic Secretary of State Adrian Fontes said that his office, which is named in the lawsuit, respects the court’s decision and “will implement these changes while continuing to protect voter access."

"My concern is that changes to the process should not occur this close to an election, it creates confusion for voters,” Fontes added in a statement.

With voter registration for this fall’s general election in Arizona set to end on Oct. 7, Patty Ferguson-Bohnee — a law professor at Arizona State University and member of the Pointe-au-Chien Indian tribe, who has served as Arizona’s Native vote election protection coordinator — says the timing of the Supreme Court’s order is likely to add another hurdle to outreach groups who may have to adjust how they help eligible voters get signed up to vote.

“People have been ramping up their voter registration efforts. A lot of groups and organizations and counties have been trained on the voter registration process, so I think it will create a little bit of confusion,” Ferguson-Bohnee says. “And then, if a voter is registering, they're not going to be aware that, ‘Oh, there is a federal form, and there's a state form. And it may actually make a difference as to whether I'm actually registered to vote, depending on which form I use.’ ”

2 different forms make Arizona voter registration complicated

Arizona has a complicated, two-track system for registering voters in which two different forms — a state one and a federal one — are accepted, with different requirements. The system stems from a decades-long dispute over the need for proof of citizenship.

State law requires showing documentary proof when registering to vote in state and local elections. Before Thursday’s Supreme Court ruling, any eligible voter who submitted the state’s registration form without citizenship proof would be registered for only federal elections, unless election officials could access a record of citizenship proof the voter previously provided to Arizona’s Motor Vehicle Division.

The Supreme Court ruled in 2013 that the state had to accept and use a standard federal form required by the National Voter Registration Act. That form does not require proof but calls for applicants to swear under penalty of perjury that they are U.S. citizens.

In 2022, however, Arizona’s GOP-controlled legislature passed a new law that bans registered voters who have not provided proof of their citizenship from voting in presidential elections or by mail for any federal office, like U.S. Senate.

The U.S. Justice Department and civil rights organizations led by Mi Familia Vota sued, and following a 10-day trial, U.S. District Judge Susan Bolton struck down that restriction after finding that it is preempted by the National Voter Registration Act, which Congress passed in 1993 to make the registration process easier for eligible voters. Bolton’s decision cited a 1976 Supreme Court decision that said the high court has recognized “broad congressional power to legislate in connection with the elections of the President and Vice President.”

The Republican National Committee, along with Arizona’s top GOP state lawmakers, appealed Bolton’s ruling to the 9th U.S. Circuit Court of Appeals. The Republicans argue that the U.S. Constitution’s Electors Clause limits Congress’ role in regulating presidential elections and that Arizona’s state legislature has, as attorneys for the RNC and the GOP lawmakers wrote in a Supreme Court filing, “sovereign authority to determine the qualifications of voters and structure participation in its elections.” Still, this month, a panel of 9th Circuit judges declined to put a pause on the lower court’s ruling.

According to the Arizona secretary of state’s office, 42,301 voters in the state were registered for only federal elections, as of July 1.

Whether those registered voters are allowed to vote in future presidential elections after this fall’s race without showing proof of citizenship remains an open legal question.

Oral arguments before the 9th Circuit are scheduled for Sept. 10 in San Francisco, and attorneys for the RNC have signaled in court filings they’re preparing to eventually ask the Supreme Court to take up this case.

In the Supreme Court’s order, at least three conservative justices — Clarence Thomas, Samuel Alito and Neil Gorsuch — signaled interest in weighing in more fully on the citizenship-proof requirement for Arizona’s state registration forms.

Edited by Benjamin Swasey