Arizona voter registration law unblocked by Ninth Circuit

(CN) — A controversial Arizona voter registration and mail-in-voting law that requires county recorders to cancel a voter’s registration and remove them from the state’s permanent vote-by-mail list if they’re registered to vote in a different county was revived by a Ninth Circuit appeals panel Friday.

SB 1260 was signed into law in June 2022 to help curtail supposed illegal voting. The Arizona Alliance for Retired Americans and two other voting rights groups sued in August 2022, claiming that three provisions listed in the bill — referred to as the cancellation, removal and felony provisions — “have no rational connection to any legitimate government purpose” and will only “severely chill voter registration and voter engagement efforts, and disenfranchise eligible Arizona voters.”

The cancellation provision requires county recorders to cancel a voter’s registration upon confirmation that the voter is registered to vote in another Arizona county; the removal provision creates a process to remove voters from the state’s permanent vote-by-mail list if the voter is registered in another county; and the felony provision makes it a felony to forward a mail-in ballot to a voter who may be registered in another state.

The law disproportionately affects people who move often, like young people and minority voters, as well as older folks who come to Arizona to retire, the alliance claims, and would criminalize the Alliance’s and the other plaintiffs’ voter outreach and registration work.

Shortly after the law took effect in September 2022, a federal judge issued a preliminary injunction against the cancellation provision and the felony provision. The judge found that the cancellation and felony provisions likely violate federal law and the U.S. Constitution, but allowed the removal provision to go into effect.

Then-Arizona Secretary of State Mark Brnovich appealed, and the Ninth Circuit heard arguments this past May. On Friday morning, a divided three-judge Ninth Circuit panel lifted the injunction and remanded to the lower court.

The plaintiffs lacked standing to challenge the cancellation provision, the panel ruled, because the plaintiffs “alleged only a frustrated mission and diverted resources, and failed to show that Arizona’s actions directly harmed pre-existing core activities.”

“The plaintiffs here must do more than merely claim that Arizona’s law caused them to spend money in response to it — they must show that Arizona’s actions directly harmed already-existing activities. The plaintiffs have not pleaded facts to establish these requirements," U.S. Circuit Judge Kenneth Lee, a Donald Trump appointee, wrote for the majority.

While the plaintiffs had standing to challenge the felony provision because they face a realistic possibility of prosecution, the panel found their constitutional challenge likely fails on the merits because the language used in the provision is not unconstitutionally vague.

“We disagree with the district court’s conclusion that the phrase ‘mechanism for voting’ in the felony provision is so vague that it would likely sweep in constitutionally protected activity such as voter outreach and registration. Although the statute does not define the phrase ‘mechanism for voting,’ the definition of the word ‘mechanism,”-’ along with structure of the statute, strongly suggests that ‘mechanism for voting’ includes only (unlawful) acts of voting, not voter outreach or registration,” Lee wrote.

U.S. Circuit Judge Jacqueline Nguyen, a Barack Obama appointee, dissented as to standing on the cancellation provision.

“The majority’s deeply flawed analysis improperly conflates standing with the merits; usurps the district court’s role as factfinder by raising and resolving a standing issue for the first time on appeal; ignores plaintiffs’ actual evidence; and confuses a third-party standing injury with the direct organizational injury here,” Nguyen wrote.

U.S Circuit Judge Daniel Collins, a Trump appointee, rounded out the panel.

Lawyers for the voting rights groups and the state of Arizona did not reply to requests for comment before deadline.