By Reilly Cunnington.
On July 5, 2022, the United States Department of Justice announced that it has filed a lawsuit against the State of Arizona. Specifically, the Civil Rights Division of the Department of Justice is challenging Arizona’s House Bill 2492 on the grounds that it violates Section 6 of the National Voter Registration Act (NVRA) as well as Section 101 of the Civil Rights Act of 1964. HB 2492, enacted in March 2022, requires all Arizona voters to provide proof of United States citizenship for certain federal elections. With Arizona already on the forefront of the fight for voter rights, this lawsuit extends a long line of contentious issues.
The Fallout of the 2020 Election in Arizona
Following the 2020 presidential election, claims of voter fraud and conspiracy theories were rampant among Maricopa County voters. Many continue to deny the election results, and some are presently protesting the alleged fraud outside the Arizona Attorney General’s Office. In early 2021, State Senate President Karen Fann ordered an audit of the 2020 presidential results in Maricopa County, which resulted in no evidence of widespread voter fraud. Nonetheless, these claims are infiltrating this year’s campaigns for governor and secretary of state and being used to justify the introduction and enactment of new voting restrictions in Arizona, including HB 2492.
HB 2492 and the NVRA
Arizona currently has the highest number of election interference bills introduced during 2022 in the nation. At the center of Arizona’s new restrictions is HB 2492. Prior to HB 2492’s enactment, Arizona voters were only required to provide proof of citizenship in order to register to vote in state elections, since this process utilized state registration forms. For federal elections, Section 6 of the NVRA requires states to accept and use a federal form to register voters in all federal elections (presidential and congressional elections). The federal form requires applicants to be a citizen of the United States, to attest to their citizenship, and sign the form under the penalty of perjury; however, the federal form does not require additional documentary proof of citizenship. Thus, as long as an individual completes the federal form, is eligible to vote, and meets all of the form’s requirements, states are required to register that individual to vote in all federal elections in the state.
The Department of Justice’s Allegations
In its complaint, the Department of Justice alleges that HB 2492 directly conflicts with NVRA’s demands by requiring voters to provide proof of citizenship to register for federal elections.
Under HB 2492, applicants filling out federal forms to register to vote in federal elections must attest to their citizenship by marking “yes” under the question of citizenship as well as give proof – a driver’s license number, a nonoperating identification license number, or the last four digits of their social security number. Any voter application that does not contain this information will not be approved and that voter will not be registered. The bill goes even further in requiring that the secretary of state and each county recorder provide the attorney general with a list of individuals who are registered to vote but have not provided proof of citizenship. Using this list, the attorney general must verify the citizenship of these applicants. Those who are not verified to be citizens will have their applications rejected and subsequently be prosecuted under A.R.S. 16-182.
In its complaint, the Department of Justice further argues that HB 2492 violates the Supreme Court’s interpretation of the NVRA as explained in Arizona v. Inter Tribal Council of Arizona, Inc., 570 U.S. 1 (2013). The controversy in that case surrounded Proposition 200, which was passed in 2004. Proposition 200 was nearly identical to HB 2492 in that it required election officers to reject all federal voter registration forms that did not have documentary proof of citizenship. The Court struck this proposition down as unconstitutional and in violation of the NVRA, reasoning that allowing states to impose additional requirements would allow them to reject applicants even though they met the federal requirements to vote.
The Department of Justice also alleges HB 2492 violates Section 101 of the Civil Rights Act of 1964. Section 101, specifically the Materiality Provision, prohibits any person acting under the law from denying an individual the right to vote because of an error or omission on an application so long as that error or omission is not material in determining whether the individual is qualified to vote. The Department of Justice argues HB 2492 violates this provision by requiring documentary proof of citizenship to complete the federal form to register to vote, since in-person voters are not required to provide documentary proof of citizenship and thus, proof of citizenship is not material to establishing whether a voter is qualified to vote by mail.
On its face, HB 2492 appears clearly unconstitutional. Moreover, the precedent created by Arizona v. Inter Tribal Council of Arizona suggests that the Department of Justice’s suit will be successful in blocking HB 2492. On the other hand, the conservative majority of the current SCOTUS bench may uphold the law, blocking thousands of Arizonans from voting in federal elections. If one thing is clear, it’s that all eyes are on Arizona in the fight for voter rights.