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A divided Supreme Court on Thursday afternoon granted a request from the Republican National Committee and the Republican leaders of Arizona’s legislature to reinstate a state law that requires residents to provide proof of citizenship to register to vote using a form provided by the state. The court turned down a request, however, to reinstate the portion of the same law that would bar voters who register using a standard federal form from voting for president or by mail unless they provide proof of citizenship.
The vote was 5-4. In a brief unsigned order, three of the court’s conservative justices – Clarence Thomas, Samuel Alito, and Neil Gorsuch – indicated that they would have granted the RNC’s application to fully reinstate the law.
Four other justices – Sonia Sotomayor, Elena Kagan, Amy Coney Barrett, and Ketanji Brown Jackson – indicated that they would have denied the RNC’s request in its entirety, keeping in place a ruling by a federal district court in Arizona blocking the state from enforcing the law.
Chief Justice John Roberts and Justice Brett Kavanaugh did not publicly signal how they voted, but they must have provided the two remaining votes necessary to revive the portion of the law dealing with the state form.
The RNC and the legislative officials had asked the justices to act by Aug. 22, to give the state enough time to print ballots before the election.
The National Voter Registration Act of 1993 requires states to “accept and use” a standard form to register voters for federal elections. That federal form requires would-be voters to swear, under penalty of perjury, that they are U.S. citizens, but they are not required to provide proof of citizenship.
The Arizona law at the center of the dispute is known as H.B. 2492. Enacted in 2022, it directs county officials to attempt to verify the U.S. citizenship of anyone who attempts to register using the federal form. If the officials cannot do so – for example, because they do not have access to databases that would provide information about citizenship – the applicant must submit proof of citizenship (such as a passport or birth certificate) to vote for president or by mail. In a separate provision, the law also requires anyone who registers using Arizona’s state form to submit proof of citizenship.
Soon after the law was enacted, the federal government and a group of private plaintiffs, including voting-rights groups and Democrats, went to federal court in Arizona to challenge H.B. 2492. They argued that the NVRA supersedes Arizona’s requirement to submit proof of citizenship to vote for president or by mail.
The private plaintiffs also contended that a 2018 consent decree barred the state from enforcing the requirement to provide proof of citizenship to register using state forms.
Last year a federal district court in Arizona agreed with the United States and the private plaintiffs that the NVRA trumps the federal-form provisions, and that the consent decree barred Arizona from enforcing the state-form provision. In a final order entered in May of this year, the district court prohibited the state from enforcing any of the provisions.
The Republican National Committee and Republican leaders of the state senate and house joined the case to defend the law. On July 18, a three-judge panel of the U.S. Court of Appeals for the 9th Circuit granted their request to put the portion of the district court’s order dealing with the consent decree and the state-form provision on hold. But the court of appeals left in place the part of the order holding that the NVRA supersedes the federal-form provisions.
On Aug. 1, a different three-judge panel reinstated the district court’s order, prompting the RNC and legislative leaders to come to the Supreme Court on Aug. 8, asking the justices to put the district court’s order on hold “to the extent it requires Arizona to (1) accept state-form voter registration applications lacking documentary proof of citizenship and (2) allow voters who have not provided documentary proof of citizenship to cast ballots for president or by mail.”
Pointing to what it characterized as the 9th Circuit’s “disruptive displacement of election rules enacted by the Arizona Legislature in 2022,” the RNC contended that the Purcell principle – the idea that courts should not change election rules during the period of time just prior to an election – warranted the Supreme Court’s intervention.
The RNC also criticized the district court’s order as an “unqualified abrogation of the Arizona legislature’s sovereign authority to determine the qualifications of voters and structure participation in its elections.”
First, it contended, by pointing to the 2018 consent decree as a reason to prohibit the state from enforcing the proof-of-citizenship requirement for its own voter registration forms, the court of appeals “ignored the established rule that a consent decree generally yields to a change in the law, including a change in statutory law.” The 9th Circuit’s reasoning, the RNC suggested, “presents significant separation-of-powers concerns” because it “would mean that a judgment entered unilaterally by an executive branch officer indefinitely displaced the Legislature’s power.”
Second, the RNC continued, requiring proof of citizenship for voters who want to register using the federal form and then vote by mail provision protects against fraud. But the district court’s ruling “expands a statute focused on voter registration to require Arizona to expand mail-in voting,” the RNC complained. And the NVRA does not preempt state law with regard to voting for president, the RNC added, because the Constitution only gives Congress limited power over the selection of presidential electors. “That authority does not permit Congress to displace state rules for registering to vote in presidential elections.”
Represented by U.S. Solicitor General Elizabeth Prelogar, the Biden administration had urged the justices to turn down the RNC’s request “to the extent it seeks a stay of the portion of the injunction based on the United States’ NVRA claim.” The RNC’s “cursory discussion of the relevant issues provides no sound basis for a stay,” Prelogar insisted, particularly when it is seeking relief based on the premise that a federal law is unconstitutional.
More specifically, Prelogar continued, the Supreme Court in 2013 ruled – in a case involving Arizona – that states violate the NVRA if they reject a federal form based on the voter’s failure to provide proof of citizenship. States cannot require a voter to provide any additional information beyond what the federal form requires, she wrote. The NVRA therefore supersedes “Arizona’s requirement that voters who register with the federal form submit documentary proof in order to vote for President or vote by mail.”
Arizona, represented by Attorney General Kris Mayes, opposed the RNC’s request. Mayes acknowledged the state’s interest in defending and enforcing the law, but she countered that the “State also has an interest in smoothly administering its laws, especially for elections.” Indeed, she wrote, “putting the district court’s injunction on hold now” would be “destabilizing,” because the state has not been enforcing the provisions at the center of the dispute.
The Democratic National Committee and the Arizona Democratic Party echoed this sentiment in their brief, observing that the relief sought by RNC and Republican legislators would also “mean people who voted for a presidential candidate or by mail earlier this year — including in the July 30 primary just two weeks ago — would suddenly be unable to do so.”
This article was originally published at Howe on the Court.
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