Judge Rules Arizona Law Requiring Proof of Citizenship Not Discriminatory

A fan waves an Arizona Diamondbacks state flag during the fifth inning of the MLB game against the Seattle Mariners at Chase Field in Phoenix on July 29, 2023. (Christian Petersen/Getty Images)

A federal judge has ruled that an Arizona law requiring voters to provide proof of American citizenship is not discriminatory.

The 109-page ruling summarizes testimony from a 10-day bench trial that concluded on Dec. 19, 2023, during which experts provided testimony regarding Arizona’s history of voting discrimination and voter suppression.

The discriminatory practices included literacy tests, which were said to effectively preclude Native American and Latino voters from participating in elections.

The case arises out of a challenge by Mi Familia Vota and others to the Arizona Legislature’s passage of H.B. 2492 and H.B. 2243,“ collectively known as the “Voting Laws.” They alleged that these laws are discriminatory.

According to its website, Mi Familia Vota “is a national civic engagement non-profit organization that unites Latino, immigrant, and allied communities to promote social and economic justice through citizenship workshops, voter registration, and voter participation.”

In a ruling issued Feb. 29, U.S. District Judge Susan Bolton said the passage of HB 2492 and HB 2243 by Arizona lawmakers was not discriminatory because the intent is to prevent voter fraud.

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“Considering the evidence as a whole, the court concludes that Arizona’s interests in preventing non-citizens from voting and promoting public confidence in Arizona’s elections outweighs the limited burden voters might encounter when required to provide DPOC,” Judge Bolton wrote, referring to documentary proof of citizenship.

Judge Bolton cited existing Arizona election law, noting that, “To be qualified to vote in Arizona, a person must be a United States citizen, a resident of Arizona, and at least eighteen years of age. Ariz. Const. art. VII, § 2.”

Specifically, Section 2. A of Arizona’s election law states, “No person shall be entitled to vote at any general election, or for any office that now is, or hereafter may be, elective by the people, or upon any question which may be submitted to a vote of the people, unless such person be a citizen of the United States of the age of eighteen years or over, and shall have resided in the state for the period of time preceding such election as prescribed by law, provided that qualifications for voters at a general election for the purpose of electing presidential electors shall be as prescribed by law. The word ‘citizen’ shall include persons of the male and female sex.”

In addition, Judge Bolton recalled that Arizona voters approved Proposition 200 in 2004 requiring those registering to vote to provide one “satisfactory evidence of citizenship.”

While the purpose of HB 2492 is to prevent voter fraud, the purpose of Proposition 200—otherwise known as the “Arizona Taxpayer and Citizen Protection Act”—was drafted and passed to protect the state from the financial damages caused by illegal immigration.

“This state finds that illegal immigration is causing economic hardship to this state and that illegal immigration is encouraged by public agencies within this state that provide public benefits without verifying immigration status,” reads the Findings and Declaration of the measure. “This state further finds that illegal immigrants have been given a safe haven in this state with the aid of identification cards that are issued without verifying immigration status, and that this conduct contradicts federal immigration policy, undermines the security of our borders, and demeans the value of citizenship. Therefore, the people of this state declare that the public interest of this state requires all public agencies within this state to cooperate with federal immigration authorities to discourage illegal immigration.”

Requirements for a voter registration form must now include “State and country of birth,” “a statement that the registrant is a citizen of the United States, and ”a statement that the applicant shall submit evidence of United States citizenship.”

Arizona’s voter registration forms must also include the statement that “executing a false registration is a class 6 felony.”

‘Plaintiffs Have Not Carried Their Burden’

Ultimately, Judge Bolton ruled that the law does not “impose an undue burden on the right to vote or violate the equal protection and due process guarantees of the U.S. Constitution” and the “Plaintiffs have not carried their burden to show that the Voting Laws’ remaining citizenship investigation procedures, DPOC requirements, and registration cancellation procedures violate the NVRA or the VRA. Nor do these provisions impose an undue burden on the right to vote or violate the equal protection and due process guarantees of the U.S. Constitution.”

“Finally,” Judge Bolton wrote, “the Court concludes that Plaintiffs failed to show that the Voting Laws were enacted with any discriminatory purpose.”

However, Judge Bolton did rule that requiring those who use a state registration form to provide the state or country of their birth does violate a provision of the Civil Rights Act and a section of the National Voter Registration Act (NVRA) “because the provision will result in the investigation of only naturalized citizens based on county recorders’ subjective beliefs that a naturalized individual is a non-citizen.”

“Requiring individuals registering to vote with the State Form to include documentary proof of residence to register for federal elections violates sections 6 and 7 of the NVRA,” she wrote, saying, “A.R.S. § 16-121.01(A) violates § 10101(a)(2)(B) of the Civil Rights Act by denying Arizonans the right to vote based on errors or omissions that are not material to determining Arizonan’s eligibility to vote.”

Therefore, “Arizona may not reject State Form registrations that lack an individual’s state or country of birth and must register an individual if that individual is found eligible to vote.”

“A.R.S. § 16-165(I) violates § 10101(a)(2)(A) of the Civil Rights Act and section 8(b) of the NVRA by subjecting naturalized citizens whom county recorders have reason to believe are non-citizens to SAVE checks, which is a different standard, practice, or procedure than that applied to native-born citizens,” she added.

Therefore, “Arizona may not conduct SAVE checks on any registered voter whom county recorders have reason to believe are a non-citizen.”

SAVE, the Systematic Alien Verification for Entitlements (SAVE) Program, is described by the U.S. Department of Homeland Security (DHS) as “a fee-based inter-governmental initiative designed to help federal, state, tribal, and local government agencies confirm citizenship and immigration status prior to granting benefits and licenses, as well as for other lawful purposes.” SAVE is administered by DHS and U.S. Citizenship and Immigration Services.

Judge Bolton said that state forms that are submitted without proof of residence cannot be rejected, but must be registered as “a Federal-Only Voter if that individual is otherwise eligible to vote.”