PHOENIX (CN) — The Arizona Attorney General’s office has maintained throughout a federal voting rights trial that two challenged laws were designed to reduce the number of non-U.S. citizens voting in Arizona elections.
“Reducing the number from two to zero?” U.S. District Judge Susan Bolton asked Tuesday, as state attorney Josh Whitaker delivered his closing argument.
Despite widespread claims of mass voter fraud pushed by Kari Lake and other Arizona politicians, only two cases exist in Arizona in which a non-citizen is accused of voting, according to court records. Neither case has resulted in a conviction and both are under seal. The attorney general has made only 38 prosecutions involving election fraud since 2008, none of which involve non-citizens.
Whitaker agreed Tuesday afternoon that “evidence of non-citizens voting in America is very rare,” but said that doesn’t negate the need to increase voter confidence — something the two laws in question are purported to do.
The laws, House Bill 2492 and House Bill 2243, which passed in 2022 but are blocked pending a verdict in the case, would require already registered voters to show proof of citizenship to remain registered to vote in presidential elections or vote in any federal election by mail, and require county recorders to terminate registration of anyone who hasn’t provided the necessary documents. The laws also call for an investigation of anyone whom a county recorder “has reason to believe” is not a citizen.
Nearly a dozen voting advocacy groups, backed by the U.S. government and the Democratic National Committee, brought multiple lawsuits in response to the laws before they were consolidated in this case. The collective plaintiffs argue the laws will unnecessarily burden those who are already eligible to vote but don’t have access to the required documents: a birth certificate, passport, driver’s license, tribal identification number or a naturalization number. That group is disproportionately made up of Latino voters and voters born outside of the U.S.
The defendants, including the state of Arizona, all 15 county recorders and the Republican National Committee, argue that the requirements will only improve election integrity and voter confidence.
Whitaker told Bolton that the state doesn’t need to prove the existence of fraud to take steps against it.
“The state can be proactive to what they think is a risk,” Whitaker said.
“Do I need evidence that this law has any effect whatsoever on voter confidence?” the Bill Clinton appointee asked.
“No,” Whitaker replied. That state’s claim that it intends to improve voter confidence is enough to be taken at face value, he said.
At the center of the conflict are the more than 30,000 Arizonans registered to vote only in federal elections, who didn’t have to show documentary proof of citizenship when they registered before 2005.
“It’s a number that’s big enough to get people concerned,” said Kory Langhofer, counsel for the Republican National Committee. “It would be good to get that number down.”
The plaintiffs argue that this group is one most likely to not have direct access to required documents to prove citizenship. And replacing the documents could take anywhere from weeks to months and cost up to hundreds of dollars.
Langhofer argued a few times over the course of the nine-day trial in November, and again Tuesday in closing, that no Arizonan exists who doesn’t have one of the five required documents listed above. Therefore, he said, the issue the plaintiffs raise simply doesn’t exist.
But the defense’s own expert witness testified in November that up to 7% of Americans don’t have access to any of those documents.
The provision calling for investigation into those whom recorders have “reason to believe” aren’t citizens, paired with a requirement to include place of birth on registration forms, leads the plaintiffs to accuse lawmakers of racial motivations in drafting the bills, targeting those born outside the U.S.
“You added a mandatory birthplace requirement, and you want to tell me it's not about identifying people born outside the United States?” plaintiffs' attorney Danielle Lang asked. “I don’t think anybody in a community of color is gonna fall for that.”
The Republican plaintiffs denied the accusations, and called all of the plaintiffs’ claims — including who would be subject to investigations under the laws — speculation.
Whitaker told Bolton that because the laws haven’t been implemented yet, it's impossible to know how county recorders will choose to implement it or when the attorney general would choose to investigate someone based on suspicion.
Bolton said back in November that she expects she’ll reach a verdict by March. Until then, neither law will take effect.
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