PHOENIX (CN) — A federal judge heard arguments Tuesday on nearly a dozen motions for summary judgment in a lawsuit aimed at a 2022 voting law plaintiffs say will lead to mass voter disenfranchisement.
Mi Familia Vota and Voto Latino, two voting rights advocacy groups based in Phoenix and Washington D.C., respectively, sued Arizona Secretary of State Adrian Fontes, Attorney General Kris Mayes and all 15 Arizona county recorders in March 2022 over the recently enacted HB2492.
The bill, signed into law in March 2022, requires already-registered voters to provide proof of citizenship to remain registered to vote in presidential elections or vote in any federal election by mail. The law places the burden on roughly 200,000 voters who never had to show proof of citizenship before, like those who registered using the National Voter Registration Act federal form.
The law includes requirements for voters to provide documentation of their birthplace and check a box on their form affirming they're citizens in addition to providing other proof of citizenship documents. Failure to do any of those things can result in a canceled registration.
Plaintiffs argue requiring voters to prove their citizenship without any notice from the state or opportunity to correct errors before their registration is terminated will disenfranchise voters who may not have access to the required documentation or the time and ability to locate it.
They claim the law violates both the First and 14th Amendments, as well as the Civil Rights Act and the National Voter Registration Act.
Both plaintiffs and defendants, as well as intervenors on both sides, filed motions and cross-motions for summary judgment in June, asking the judge to either confirm or deny the legality of the provisions set forth in the voting law. They argued their cases before U.S. District Judge Susan Bolton on Tuesday morning.
Bolton was skeptical of both the checkbox requirement and the proof of place of birth requirement, asking how either would help county recorders determine voters’ citizenship.
Attorney Joshua Whitaker, for the attorney general, said the checkbox asking for citizenship allows recorders to quickly confirm the voter’s status if documents are blurry or unclear. Bolton disagreed that a checkbox would suffice in place of the documents.
“Don’t they confirm it by reviewing the attached documents?” she asked. “How does this yes or no question confirm citizenship?”
Similarly, she said proof of birthplace has no bearing on where that person lives or their citizenship status.
“You need to tell me why, as a matter of law, it’s material, and I don’t think you can,” she chided.
She added if county recorders have been able to identify the citizenship status of voters using the federal form without proof of citizenship or birthplace, there’s no reason why they can’t continue to do so now.
“It seems like you’re telling me facts without any evidence of the existence of those facts,” she told Whitaker.
Daniel Volchok, attorney for the intervening Democratic National Party, argued that because the National Voter Registration Act outlaws disadvantaging voters based on how they registered, barring voters who registered using the federal form from voting by mail would violate federal law.
“The federal form doesn’t require proof of citizenship, but those people are being told that they don’t have the same rights as those registered through other methods,” he said.
Kory Langhofer, attorney for the intervening Republican National Committee, countered that the law only pertains to registering, not voting by mail, which he called “definitely not a federal right.”
Bolton pushed back, arguing that the ability to vote by mail is a clear advantage over inability, so the action could still be in violation of the registration act.
John Freedman, representing intervening plaintiff Poder Latinx, told Bolton that the law’s provision requiring both county recorders and the attorney general to “use all available resources,” to investigate voters suspected of not being citizens violates federal law because it allows for different interpretations, which could lead recorders to enforce the law in different ways.
Attorneys for the United States and Living United for Change in Arizona both asked Bolton to put off a summary judgment ruling until after discovery is completed in November, saying most of the issues at hand require more facts to properly litigate.
Whitaker agreed that a decision on the proof of birthplace provision should be held off until further discovery, but said the checkbox provision should be decided now. Mi Familia Vota attorney Christopher Dodge asked Bolton to decide both issues now.
“Our claims are ripe for adjudication,” he said. “Further discovery will only further confirm what we think is undisputed at this point.”
It’s unclear when Bolton will rule on the competing motions. At the hearing’s conclusion, she set a bench trial date for Nov. 6.
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