President Donald Trump last week signed an executive order dealing with elections. Among other provisions, it requires voters to show proof of citizenship — Arizona already requires this.
The order also looks to stop states from counting ballots that are postmarked by Election Day, but don’t make it to election officials until after that by withholding funding from states that allow such counting.
With me to talk about what this order could mean for Arizona — especially as voters in the 7th Congressional District prepare for a special election this summer to replace the late Raúl Grijalva, The Show sat down with Stephen Richer, an opinion contributor at The Arizona Republic and former Maricopa County Recorder, and Elvía Diaz, editorial page editor at The Republic.
Full conversation
MARK BRODIE: And Stephen, let me start with you. You wrote a piece about this in the paper. So when you look at the executive order on the whole, what's the good? What's the bad?
STEPHEN RICHER: Well, in terms of good, there's some things that I like as a matter of public policy, such as requiring documented proof of citizenship, such as requiring that people get their mail ballots back by election day. But the broader point that I hope to make in the article is that this is just highly unorthodox in terms of how it's done.
Doing it at the federal level and doing it through executive order, election administration is usually left to the states and to the extent that the federal government gets involved, Congress usually writes those laws.
BRODIE: Yeah, Elvía, it's one of those areas of government, you hear, you know, a few others, education, especially right now being one that, you know, one of those areas that yes, impacts the federal government, but it's not typically overseen or, you know, the, the rules and laws created are not necessarily by the federal government. It's usually left to the states or in some cases localities.
ELVÍA DIAZ: Yes, absolutely, and, and as Stephen was saying, we are focused more on the proof of citizenship and forgetting about the other parts of the executive order. And I'll be the first one to admit that I certainly don't understand the whole executive order. For example, you know, it says that the U.S. Election Assistant Commission must clamp down on tabulators, which are, you know, a student that obviously knows more about this, but to me, that's essentially, you know, rewriting the rules of elections at the federal level, which again, that's the job of Congress, not the President of the United States.
And, you know, it tells me that the president and Republicans for a long time has been focused on making it a lot more difficult for people to vote instead of incentivizing those who usually don't vote to actually cast a ballot and participate in our, democratic society.
BRODIE: Steven, as you point out in your piece, Arizona has a proof of citizenship law and has for a number of years, and it's kind of created this, this almost bifurcated system where some folks are only allowed to vote in federal elections, you know, for for Congress or senator or the president, they're not allowed to vote in other elections down the ballot. What kind of impact might this executive order have on those voters, especially since there's an election coming up in just a few months?
RICHER: That's right. We have a special election that's coming up that's a federal election, and that's to replace U.S. House member Grijalva, who recently died. The point I was trying to make, and it's a bit convoluted, is that Arizona has long sought to require documented proof of citizenship for all elections, for all contests.
We were told by the United States Supreme Court previously, however, that we could not impose that requirement on people voting in federal contests, so the U.S. House, U.S. Senate and president of the United States. And that's because our laws were preempted by the NVRA, the National Voter Registration Act created by Congress.
And so we had this split system, but now my point is, well, the NVRA is done away with by President Trump's executive order. Then does Arizona's law kick in where everyone has to have documented proof of citizenship, and so therefore, with these federal only voters, these 30,000-40,000 some voters in Arizona, no longer be eligible to vote in any contest, not just not eligible to vote in state and local contests, but they wouldn't be able to vote at all.
BRODIE: Now, Stephen of the three of us, you're the one who's actually an attorney, can an executive order overturn a law like that?
RICHER: This is like I said, I think unorthodox is the polite way of putting it, but normally the president cannot undo federal law that has been drafted by Congress and signed in by a previous president. The president cannot undo that through executive order, and then there's also an issue with Article 1, Section 4 of the United States Constitution says the time, place, and manner will be left to the states to determine how they want to administer elections.
And so I think you're going to see this attack in the courts on two different fronts, and I'm a little surprised that we haven't already had a lawsuit filed, but I suspect that will be happening soon.
BRODIE: So Elvia, the the word that keeps coming to mind as I'm listening to Stephen talk is uncertainty that, you know, we saw this actually in the last election with the the glitch at MVD that led some voters to not be sure leading up to election day whether or not they'd be able to vote. What does uncertainty do for elections, especially in a special election, which will probably already be lower turnout than what we might see in a regular election?
DIAZ: Well, it creates distrust, and I think that's the objective here, and we have seen that since 2020, the president and MAGA movement has done nothing but lie about stealing elections and voter fraud, and, and so this adds to that uncertainty and the chaos, and again the technicalities of this executive order worries me the most.
So if we get rid of the tabulators, for instance, which is, you know, the equipment that helps expedite the vote count. So what, what is that gonna do?
So it adds a lot of uncertainty, a lot of doubt, and, and in the end, I again, I go back to the same issue, you know, creating this trust means that fewer people might be voting, and I think that's the objective to make sure that people do not participate in voting. I mean, in principle, for instance, you know, requiring people to prove that they are in fact U.S. citizens to vote, it's, it's a good thing, right? I mean, who's, who's going to disagree on principle or something like that? But it's all the other steps that needs to be taken to fulfill that, that worries me the most.
BRODIE: Well, so Stephen, what do you think that this means for, for example, the Pima County recorder and other election officials in that part of the state who are going to be dealing with this coming up for this summer special election?
RICHER: So technically this is federal law as of today. Now, what I think will happen is a number of public interest groups will sue. I think that they'll ask the federal courts for a temporary restraining order, meaning that certain parts of the law won't go into effect until the constitutionality or the legality of those parts has been determined, and that could put it in a freeze position, but I think that right now there's probably a lot of uncertainty, and I assume that all 15 county recorders are asking their county attorneys to weigh in on this, to tell them what to do.
And simply put, I'll, I'll say what I said at the end of the article, which is all told, this is one of those weeks when I'm happy that I'm no longer Maricopa County recorder.
BRODIE: Well, so I mean like what what put yourself back in that spot for just a minute. I won't make you do it for too much longer than that, but like, how do you try to plan for an election? How do you reach out to voters? How, what do you say to voters, especially those federal only voters, when you're not really sure what the deal is for them at this point?
RICHER: I don't know. Simply put, I think that I would probably end up being a holding pattern, but we would also put out some social media, we might look into doing letters to all the federal only voters.
Now, the good thing about the federal only list is if you are placed on the federal only list, you are required to get a letter upon registration from your county recorder, so none of those people should be unaware that they are on the federal only list. Again, what we don't know yet is if those people will be able to continue voting federal only or if Arizona's law from 2004 will kick into effect, which requires documented proof of citizenship.
