Arizona Governor Enacts Seemingly Unconstitutional Voter Restriction Law

By Sydney Plaskett.

On March 30, Arizona Governor Doug Ducey enacted a wave of controversial bills, one of which mandates documentary proof of US citizenship (DPOC) to vote in elections. While the law will likely be shut down in the courts, it could potentially cut off voting for at least 31,500 Arizona voters in the interim. Even more concerning is the risk that the facially unconstitutional bill will survive the impending legal challenges, given the conservative makeup of the Supreme Court. If the law remains, its impact on Arizona voters could be disastrous.

A Closer Look at the Law

House Bill 2492 requires all Arizona voters to provide documentary proof of US citizenship. It also requires voters to provide a home address on their registration forms. Arizona is the only state to require such documentary proof to vote in local, state, and federal elections. This is because states must “accept and use” a federal voter registration form created by the US Election Assistance Committee (EAC) that simply requires applicants to check a box indicating that they are a US citizen under the penalty of perjury.

Contextualizing Ducey’s Motives

Only US citizens can vote in federal elections. For US citizens who do not have privileges to vote in state or local elections, the above-mentioned form allows them to still exercise their right to vote in federal elections. These voters are known as “Federal Only Voters.” Even citizens who can legally vote in state and local elections depend on this form for voter registration due to its accessibility. It can be downloaded online and submitted by mail – a pathway that HB 2492 bans. Moreover, in states with a strong Native American presence (like Arizona), this form is especially important. Many tribal citizens do not have a conventional street address, often impeding their ability to vote in state elections. By requiring documentary proof of citizenship and a residential address as supplements to the federal form, HB 2492 will affirmatively deny these voters access to the democratic process.

Governor Ducey argues that HB 2492 merely encourages election integrity by ensuring that all voters are in fact US citizens. He cites concerns about the dramatic rise in Federal Only Voter registrations in the wake of the COVID-19 pandemic, when many voters were registering by mail using the federal form. In his signing letter, he cites the fact that in 2014, only 21 Arizona voters used the newly-implemented form without providing DPOC; in 2020, this number rose to 11,600 voters. His support for the bill seems to rest on an assumption that non-US citizens illegally voted for president in 2020, throwing the election in favor of President Biden. What Ducey seems to ignore is the possibility that many voters relied on mail-in registration forms not because they aren’t citizens, but because in-person voting measures were less than ideal, and arguably unsafe, in the midst of the pandemic.

The Supreme Court’s Take

In 2018, the Supreme Court reviewed a prior Arizona voting law that was nearly identical to HB 2492. The law at issue required Arizona election officers to reject all federal voter registration forms that were not accompanied by documentary proof of citizenship. The Court struck down this law as unconstitutional and in violation of the National Voter Registration Act of 1993 (NVRA), which requires all states to “accept and use” the federal form. The majority opinion clarified that states still “retain the flexibility to design and use their own registration forms, but the Federal Form provides a backstop: [n]o matter what procedural hurdles a State’s own form imposes, the Federal Form guarantees that a simple means of registering to vote in federal elections will be available.” Rather than violating the NVRA’s “accept and use” mandate, the Court advised that states request the EAC to make alterations to the form that they deem necessary, then pursue these requests in federal court. In other words, states like Arizona are not without recourse. The sufficiency of the oath of citizenship can be challenged, just not by enacting laws that require voters to supplement their federal registration forms with DPOC.

Immediate Lawsuits Filed

Almost immediately, organizations such as the Campaign Legal Center (CLC) and Mi Familia Vota filed suit. They urged that HB 2942 violates clearly-established federal law and discriminates against a host of voter groups, including naturalized citizens and university students. A more blunt allegation is that the bill is nothing more than “voter suppression fueled by racist xenophobia.” Those filing suit are frightened by the impact that HB 2942 will have on voter demographics and urge that the law be struck down per the Court’s decision in the above-mentioned case, Arizona v. Inter Tribal Council of Arizona.

While the law seems so clearly unconstitutional, there is a chance that the conservative majority in the Court may uphold the law. This is unlikely, but the voters affected by the bill have reason to be concerned, especially because it may take some time for these challenges to reach the Court. While we wait to see whether HB 2492 survives, thousands of Arizonans are indefinitely cut off from exercising their right to participate in democracy.

"Vote!" by kgroovy is marked with CC BY-SA 2.0.

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By Sydney Plaskett

J.D. Candidate 2023

Sydney is a 2L Staff Writer from Monument, Colorado. After earning an English degree from the University of Denver, she moved to Phoenix to pursue her J.D. at the Sandra Day O’Connor College of Law. She enjoys reading, exercising, and spending weekends out with her friends.

The opinions expressed herein are those of the individual contributors to the ASLJ Blog and should not be construed as the opinions of the Arizona State Law Journal or the Sandra Day O’Connor College of Law at Arizona State University.