PHOENIX (CN) — A Ninth Circuit panel took up the question Tuesday of whether Arizona can enforce a law that advocacy groups say will disenfranchise Arizona voters.
SB1260, signed into law in June, would require 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. It also would make it a felony to “provide a mechanism for voting to another person who is registered in another state,” regardless of if that person now lives in Arizona and intends to vote only in Arizona.
The Arizona Alliance for Retired Americans sued the attorney general and secretary of state this past August, claiming that the 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 law disproportionally 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.
The alliance argues in its lawsuit that the felony provision is unconstitutionally vague and overbroad. It says “a mechanism for voting” can be interpreted in a variety of ways, including the act of registering to vote, leaving the alliance and co-plaintiff Voto Latino wondering if registering new Arizonans would be a felony if they don’t first cancel their past voter registrations.
The plaintiffs claim all three provisions violate procedural due process afforded by the National Voter Registration Act, as the challenged law doesn’t require county recorders to contact voters directly to cancel old registrations — something required by the National Voter Registration Act. They also say the new law places an undue burden on citizens’ right to vote since the onus is on them, rather than the county recorders, to ensure they are following the new guidelines.
In September, a federal judge in Arizona granted summary judgment to the plaintiffs on both the felony and cancellation provisions, but not the removal provision. Then-Attorney General Mark Brnovich appealed the decision the next day. Since the lawsuit was filed, Kris Mayes and Adrian Fontes have taken over as attorney general and secretary of state, respectively.
Much of Tuesday’s hearing before the Ninth Circuit came down to whether the act of registering to vote counts as a “mechanism for voting.”
Aria Branch, attorney for the alliance, said the plaintiffs fear the phrase can be interpreted that broadly.
“Voter registration is inextricably connected to the act of voting,” she said.
But Tracy Olsen, representing the Yuma County Republican Committee as an intervenor on the side of the government, said the acts of registering to vote and actually voting are two separate processes. Because you can register to vote without actually casting a ballot, she said, everything required to register to vote is part of a separate act than the vote itself, which instead includes the filling out and submitting of a ballot.
Joshua Whitaker, representing Attorney General Mayes, said it doesn’t matter whether the registration constitutes a mechanism for voting because Mayes has already said she won’t enforce it that way. Without a history of enforcement or any clear threat of enforcement, Whitaker said, the plaintiffs lack standing to challenge how the provision could be enforced.
U.S. Circuit Judge Daniel Collins, a Donald Trump appointee, took issue with that.
“In a First Amendment context, if they think a statute makes their conduct unlawful, but the AG and the county DA just sit there silently, they have to just sweat it out?” he asked. “I don’t see how they don’t have standing to attack the constitutionality.”
Whitaker said it would be different if the enforcing agencies didn’t comment on the statute, but because they specifically told the plaintiffs that they will not enforce the law in the way the plaintiffs fear, there’s “no controversy.”
Branch said the plaintiffs don’t need to prove a specific threat, as the statue clearly lays out the possibility.
“There’s nothing unduly speculative about believing that this attorney general or any future attorney general will enforce the law as it’s written,” she said.
Challenging the Arizona federal court’s ruling on the cancellation provision, Olsen argued the National Voter Registration Act requires county recorders to “collectively maintain the state-wide voter database,” and canceling duplicate registrations is part of that requirement.
But as the lower court’s decision confirmed, that act also requires recorders to contact voters directly before canceling any registrations, Branch said. This is to prevent the accidental cancellation of the wrong voter’s registration of people who share names.
U.S. Circuit Judges Jacqueline Nguyen, a Barack Obama appointee, and Kenneth Lee, a Donald Trump appointee, rounded out the panel. It’s unclear when a ruling will be issued.
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