Republicans want a federal judge to let Arizona block those who do not provide proof of citizenship from voting in this year's presidential election.
In new legal filings Friday, attorney Thomas Basile told U.S. District Judge Susan Bolton that House Speaker Ben Toma, Senate President Warren Petersen and the Republican National Committee want to appeal her ruling that Arizonans who use a federal voter registration form are entitled to cast a ballot in presidential elections after the judge voided parts of a 2022 law that says that only those who provide "satisfactory evidence of citizenship'' can vote in those elections.
That order remains in place pending an appeal before the 9th Circuit Court of Appeals, meaning the 35,273 Arizona who used that form to register are eligible to cast ballots in the upcoming presidential election.
In his new court filing on behalf of the GOP and the state officials, Basile told Bolton that he thinks she got it wrong and that she should stay her own ruling while he asks the 9th Circuit to overturn it.
But he does concede that her ruling, if left intact, could make it harder for Republicans to win in November.
Basile, in his role of representing the Republican National Committee, told Bolton that her order barring the state from limiting who can vote for president "distorts the competitive environment underpinning the 2024 election in a manner that is unfavorable to the RNC and Republican candidates.”
He said there was evidence introduced that only 14.3% of those who signed up to vote using the federal form registered as Republicans. By contrast, Basile said, Republicans make up 34.5% of total active registered voters.
The request is likely to face opposition from several Hispanic civil rights groups who successfully sued to have the restriction voided.
State law requires people to provide proof of citizenship to vote. That is not in dispute for state or local races.
But the National Voter Registration Act also requires the Election Assistance Commission to prepare a form that can be used to vote in federal elections. And that form mandates only that applicants sign a sworn statement avowing, under penalty of perjury, they are in fact citizens.
Sen. Jake Hoffman (R-Queen Creek), who was a representative when the 2022 law was passed, said that “ignores the Constitution.” He said Congress is allowed to pass laws pertaining to the times, places and manners of electing representatives and senators.
“The Constitution gives no such power (by Congress) over presidential elections,”' Hoffman argued in 2022, saying that power is reserved to the states. And that, he said, means Arizona is free to set voting requirements in presidential races, including proof of citizenship.''
Bolton, in her ruling in September, disagreed, ruling legal precedent gives Congress the power to control registration for presidential elections.
Similarly, Bolton said federal law preempts a requirement in the challenged statute that anyone who uses the federal form must provide documented proof of citizenship in order to vote by mail in any race for which they are eligible to vote. She said that's not what the federal law says.
“Congress recorded that it enacted the National Voter Registration Act not just to establish procedures that will increase the number of eligible citizens who register to vote in elections for federal office, but also to make it possible for federal, state and local governments to implement this chapter in a manner that enhances the participation of eligible citizens as voters in elections for federal office,” Bolton said.
In asking her to stay her ruling, Basile is again arguing that Bolton is wrong.
He acknowledged that the National Voter Registration Act requires states to “accept and use'” the federal form to register voters in federal elections. And that, said Basile, includes the presidential race.
But he told the judge that's irrelevant, arguing, in essence, that federal law is unconstitutional.
Basile pointed out the U.S. Constitution does allow Congress to regulate the "manner'' of federal elections.
But he said that applies only to races for the U.S. Senate and House. In presidential races, Basile said, the Constitution is more limiting, saying Congress can only regulate the time of choosing electors and the day that they vote.
Beyond that, Basile told Bolton that her decision to suspend the 2022 law approved by the Republican-controlled Legislature and signed by then-Gov. Doug Ducey “inflicts both sovereign and institutional harms.”
"An injunction barring the state from conducting this year's elections pursuing to a statute enacted by the Legislature would seriously and irreparable harm the state if the statute is ultimately determined to be valid,'' he wrote.
Hoffman's legislation was one of several dozen measures introduced in the 2022 legislative session closely linked to the "Stop the Steal'' movement that insists that Donald Trump actually outpolled Joe Biden in Arizona. Most of those efforts were based on various claims, all unproven, that the election process itself was flawed.
This measure specifically stems from the idea that people not in this country legally actually went to the polls and cast ballots, a contention by Trump supporters that may have affected the outcome which gave the victory to Biden.
But the Secretary of State's Office says the current records they have suggest there is no proof that these federal registration forms are being used by those who are in this country illegally.
"A majority of them are students because they don't have their birth certificates when they get them when they go off to college,'' said a spokesman for the office. He said that list also includes people in the military and Arizonans who are overseas.
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