Federal voter form acceptable in Arizona without state rules, appeals court says

PHOENIX — Arizona won’t be able to block those who sign up to vote using a federal registration form from casting a ballot in the presidential race, at least not now.

In a brief order Thursday, the 9th Circuit Court of Appeals rejected a plea by Republican legislative leaders to delay a ruling by a trial judge that barring enforcement of such a ban. In the same order, the three-judge panel also said those using that federal form still can cast their ballots by mail.

What the judges decided, however, is that anyone who tries to register to vote using a state form is required at the same time to provide documented proof of citizenship. More to the point, if they do not, the application must now be rejected.

That overturns what had been occurring.

Maricopa County Recorder Stephen Richer said the practice until now has been that registration requests using the state form that did not also have proof of citizenship automatically were put into the “federal only” category, as if the applicants had submitted a federal form. Richer said he and the other 14 county recorders will stop doing that.

But Richer noted none of this disturbs the ability of those who use the federal form in the first place to be able to cast a ballot in the presidential race. And those federal forms do not require proof of citizenship, just a sworn statement that the person is a U.S. citizen and otherwise eligible to vote in the state.

House Speaker Ben Toma acknowledged the limited nature of the victory.

“But it’s still a win,” he told Capitol Media Services.

None of this precludes Toma and Senate President Warren Petersen from pursuing an appeal of last year’s order by U.S. District Court Judge Susan Bolton about the ability of those using the federal form to cast a ballot in the presidential race.

A hearing is being scheduled on that for September. That means there still could be a decision before the Nov. 5 election.

But unless Bolton’s ruling is overturned, it means the more than 35,000 Arizonans who have signed up using that federal form will get a say in the upcoming election. Their views could have an impact: Joe Biden won Arizona over Donald Trump in 2020 by fewer than 11,000 votes.

Attorneys for the GOP leaders contend the ballots they cast — if they are allowed — would break against Republican interests.

In seeking to overturn Bolton’s ruling, attorney Thomas Basile said only 14.3% of those who used the federal form — and can vote only in federal races — are registered Republicans. By contrast, he told the appellate judges, Republicans comprise 34.5% of total active registered voters in Arizona.

“The judicially mandated inclusion of these individuals in the presidential electorate necessarily impairs the relative competitive position of the Republican presidential nominee,” Basile told the appellate judges.

So far, though, those arguments have failed to convince the 9th Circuit to delay Bolton’s decision.

The fight is over a 2022 Arizona law that requires proof of citizenship to register, a precursor to being able to cast a ballot.

Several rights groups filed suit, calling the requirement “a baseless assault on Arizona’s election system based on a conspiracy theory that non-citizens are voting, despite a persistent lack of credible evidence to support such claims.”

Bolton agreed. But Thursday’s order from the 9th Circuit allows Arizona to enforce the proof-of-citizenship requirement for those who try to register using the state form.

The federal form, however, presents an entirely different issue. The key is the National Voter Registration Act, which requires states to accept and use a registration form prepared by the federal Election Assistance Commission that requires only that applicants avow, under penalty of perjury, that they are U.S. citizens.

“The plain language of the National Voter Registration Act reflects an intent to regulate all elections for federal office, including for president or vice president,” Bolton wrote last year in enjoining the state from enforcing the provisions while the case plays out. “And binding precedent indicates that Congress has the power to control registration for presidential elections.”

The Republican leaders have not challenged the ability of those using the federal form to vote in congressional races. They have acknowledged that Congress is allowed to pass laws pertaining to the times, places and manners of electing representatives and senators.

But they contend that same congressional power does not extend to presidential races. And that, they contend, means Arizona is free to set requirements in presidential races, including proof of citizenship.