A federal appeals court concluded there is evidence Arizona legislators acted with discriminatory intent when they approved some 2022 laws requiring proof of citizenship to vote.
In a 79-page ruling, the 9th U.S. Circuit Court of Appeals said federal law decides who can vote in federal elections. And that, wrote Judge Ronald Gould for the majority, supersedes legislation approved by Republican lawmakers to deny a ballot to those without such proof.
In many ways, Tuesday's ruling is not a surprise. It affirms what U.S. District Court Judge Susan Bolton concluded two years ago.
And it means the state is still barred from enforcing laws that, among other things, sought to bar certain voters from casting a ballot in presidential elections, or cast their ballot by mail.
But the majority of the appellate court concluded something that Bolton did not — that there is enough evidence to conclude that lawmakers acted with the intent of discriminating against voters based on their race or national origin.
In fact, Gould said, the evidence shows that lawmakers knew there had been no voter fraud, the justification Republican legislators cited when passing those laws. That includes the results of a so-called "audit" of the 2020 election returns sought by Republicans unhappy that President Donald Trump lost the popular vote that year in Arizona.
"Yet the Legislature proceeded to enact legislation aimed at remedying the voter fraud that was contradicted by its own findings," the appellate judge wrote.
A finding of intentional discrimination by itself is significant, and not just about what it says about the GOP lawmakers who approved the plan and their allies that pushed it.
It also would make it harder for legislative leaders to argue, assuming the case eventually goes to the U.S. Supreme Court, that the restrictions were based solely on their belief that they were necessary to prevent voter fraud. And it opens the door to findings that the state violated other provisions of the Voting Rights Act.
Senate President Warren Petersen, one of the GOP lawmakers who intervened in the case to defend the laws, vowed to appeal the latest ruling to the Supreme Court.
At issue is an Arizona law requiring people to provide proof of citizenship to vote.
That is not in dispute for state and local races.
But the National Voter Registration Act requires the Election Assistance Commission to prepare a form that can be used to vote in federal elections. That form mandates only that applicants sign a sworn statement avowing, under penalty of perjury, they are in fact citizens.
That didn't stop Republican lawmakers from approving two 2022 laws refusing to let people vote for president without “documentary proof of citizenship” — an attempt to apply state law to a federal election.
Proponents of that law argued the 2020 election results — Trump lost by 10,457 votes — were affected by people who signed up to vote using that federal form, people who the Republicans contend are not entitled to vote unless they provide proof of citizenship.
At the time there were about 21,000 Arizonans who had signed up using that form. Currently there are nearly 49,000 people signed up as "federal only voters."
Another provision of the 2022 law said anyone who uses the federal form cannot vote by mail.
And lawmakers also voted to direct county recorders to conduct checks of voters they have "reason to believe" are not citizens.
All that, Gould said, runs afoul of federal law.
But the appellate court, in Tuesday's ruling, found there is evidence to show this wasn't a simple mistake or even just an attempt by lawmakers to protect the integrity of the voting process. The judges said the legislators knew exactly what they were doing — and did it anyway.
The majority in the 2-1 decision laid out what they called the state's "history of discrimination against minorities and of voting discrimination," going back to even before it became a state with a territorial law imposing a literacy test with the explicit limit to limit the "ignorant Mexican vote."
Then there were wholesale purges of voter rolls in the 1970s and 1980s forcing people to reregister, a move that Gould said results in fewer minority voters signing up again than white voters.
But the judge said it wasn't necessary to go back anywhere near that far.
He cited Trump's 2020 loss in Arizona and the Senate ordering a review of the results. And while that investigation failed to prove fraud — in fact, a hand count showed that Trump had lost by an even larger margin than the official tally — Gould said lawmakers used it to claim that it provided the basis for the new laws on proof of citizenship.
Bolton, in concluding there was no evidence of an intentional act, said challengers failed to prove that Arizona lawmakers lacked sincerity in their belief that non-citizens were voting. Gould, however, said that was the wrong test.
"In addressing an issue of voter suppression, we are not bound by questions of sincerity of legislators, but rather must look to what was actually done, and the purported reasons for and the effect of legislative action," he wrote. That, Gould said, "cannot be determined by legislative say-so but requires a demonstration through a presentation of facts."
"The Legislature's failure to show evidence of voter fraud in its audit calls into question the sincerity of its belief in the evidence of voter fraud," he said.
And there was something else that got the attention of the appellate judges: the role of the Arizona Free Enterprise Club in the legislation. In fact, Petersen himself said that the organization that aligns itself with Republican interests drafted most of the challenged voting laws.
Gould said the organization, in advocating for the laws, sent lobbying materials to lawmakers headed "How more illegals started voting in AZ."
"This suggests that the Free Enterprise Club – and architect and advocate of the voting laws – was motivated by a discriminatory purpose in drafting and advocating for the voting laws, which, in turn, supports a conclusion that the voting laws were the product of intentional discrimination."
The conclusion was not unanimous.
Appellate Judge Patrick Bumatay said it was wrong of the majority to overturn Bolton's findings. He said that ignores the judicial principle that legislators are presumed to act in good faith.