Supreme Court limits AZ voters' ability to register without providing proof of citizenship

The nation's highest court partially granted an emergency stay Thursday that limits Arizonans' ability to sign up to cast ballots without providing proof of citizenship. The pivotal decision could have major ramifications for the presidential race and voter registration laws in other states.

The news comes after state and national Republicans sought to enforce provisions of a recent state law tightening voter requirements. The case went to the U.S. Supreme Court for consideration after a federal judge blocked certain provisions of the law last year, sparking a series of appeals that so far have been unsuccessful. It is part of a larger legal battle raging in Arizona over voter registration laws during a key period before the November election.

Supreme Court Justice Elena Kagan, who oversees applications to the court from Arizona and other states within the Ninth Circuit, referred the application to the full court.

It was ultimately divided on the issue. The order notes that Justices Clarence Thomas, Samuel Alito and Neil Gorsuch, some of the court's most conservative members, would have granted the application in full. Kagan, alongside Justices Sonia Sotomayor, Amy Coney Barrett and Ketanji Brown Jackson would have denied it in full.

The decision means voters who attempt to register without proof of citizenship using Arizona's voter registration form will be rejected going forward, pending appeals in the U.S. Court of Appeals for the Ninth Circuit and any petitions for review. Voters who attempt to sign up to cast ballots using the federal form without providing proof of citizenship will still be registered. Previously, such voters could use both documents.

But the ruling rejected other aspects of the GOP application, including requests to block so-called "federal-only" voters from casting ballots in the presidential race, and to block those voters from casting ballots by mail. These voters will continue to cast ballots for presidential and congressional contests, but not state and local ones.

Several other cases regarding voter registration laws remain active in lower courts in Arizona.

Nationwide, registration forms generally require voters to attest that they are American citizens. Voters do so under the penalty of perjury, meaning they can be held criminally liable if they are found to have provided false information. Arizona is the only state in the country that also requires voters to provide a birth certificate, a passport or one of a handful of other documents proving their citizenship.

About 42,000 Arizonans haven't provided that proof, creating a unique, two-track system. Federal courts have repeatedly ruled that state lawmakers can block voters who have not shown citizenship documents from participating in state and local races but must allow federal-only voters to cast ballots in federal contests, including the upcoming presidential race, U.S. Senate contest, and congressional matchups.

Studies have repeatedly shown that voter fraud is extremely rare . Noncitizens who attempt to vote risk fines, prison time, deportation and impeding their naturalization process. A recent Votebeat analysis found federal-only voters are disproportionately young people on college campuses who are without access to their citizenship documents.

These voters only represent about 1% of the state's total registered voters. Still, every vote could be key to the outcome of the high-stakes presidential election. In 2020, the contest was decided by under 11,000 votes.

Issue attracts widespread attention from political groups, other states

Several political organizations and two dozen state attorney generals filed briefs in the case before Kagan's decision came down.

Some conservative groups, like the Arizona Free Enterprise Club, are local to Phoenix. Others, such as the Honest Elections Project and Immigration Reform Law Institute, are headquartered in other parts of the country. They framed the case as a test of state's rights and expressed concerns that noncitizen voting could sway the results of races in Arizona.

"Allowing the decision below to remain in effect would create massive uncertainty nationwide and threaten the integrity of Arizona’s elections," attorneys for the Honest Elections Project wrote in a brief.

However, Arizona officials said altering the state's voter registration procedures so close to a major election could "create chaos and confusion, and in turn undermine the credibility of our elections."

"Applicants offer no compelling interest to deprive federal-only voters of their fundamental constitutional right to vote for president of the United States or access to early voting," attorneys for Secretary of State Adrian Fontes wrote in a response to the request for an emergency stay. "Nor could there be."

U.S. Solicitor General Elizabeth Prelogar echoed those concerns in her own brief and argued the National Voting Registration Act preempts state law regarding elections for federal office. She wrote the statute aims to "simplify voter registration" in federal contests and responds to prior "discriminatory and unfair registration laws" that disproportionately impacted certain groups, including non-white voters.

Prior to 2013, Arizona was one of nine states that were required to submit changes to election laws and electoral district maps to the federal government for review before implementing them. Some localities in a handful of other states were required to undergo the same process, known as "preclearance." The Voting Rights Act mandated it for jurisdictions with an extensive history of discriminatory voting practices but was later struck down by the Supreme Court.

"The NVRA embodies Congress’s judgment that facilitating voter registration is a laudable objective to be pursued, not a source of harm to be avoided," Prelogar wrote in a brief. "Increased voter participation thus does not qualify as irreparable harm."

Meanwhile, Republican officials in other states that could seek to enact similar legislation urged the court to grant an emergency stay.

The brief was authored by attorney generals in Kansas and West Virginia. Officials in Alabama, Alaska, Arkansas, Florida, Georgia, Idaho, Iowa, Indiana, Kentucky, Louisiana, Missouri, Montana, Nebraska, New Hampshire, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Texas, Utah and Virginia also signed the document.

That list includes all but two states — Georgia and Mississippi — previously covered in whole by preclearance requirements .

"What happens in Arizona does not stay in Arizona," the brief reads, arguing that "illegal voting" is a threat to states across the country and officials should have the ability to pursue "commonsense election security measures."

More: Arizona requires proof of citizenship to register to vote: how it could sway the election

How Arizona's voter rolls get checked

Federal-only voters don't provide proof of citizenship with their registration forms — but they still go through checks.

State law mandates that county recorders "use all available resources to verify the citizenship status" of those registering to vote. This includes checking the citizenship status of federal-only voters against an immigration status verification service provided by the Department of Homeland Security when practicable. That system requires specific identification numbers that county officials don't have for every federal-only voter.

Voter rolls are also routinely checked with information from the U.S. Social Security Administration, the U.S. Postal Service, the Arizona Department of Health Services, the Arizona Department of Transportation and the Maricopa County Jury Commissioner’s Office.

If another government agency tells election officials that a person registered to vote is a noncitizen, the person is removed from the voter list.

Sasha Hupka covers county government and election administration for The Arizona Republic. Reach her at sasha.hupka@arizonarepublic.com . Follow her on X: @SashaHupka . Follow her on Instagram or Threads: @sashahupkasnaps . Sign up for her weekly election newsletter, Republic Recount .

This article originally appeared on Arizona Republic: Supreme Court limits AZ voters' ability to register without providing proof of citizenship