Arizona Republicans enact a controversial new proof-of-citizenship voting law

Arizona Gov. Doug Ducey on Wednesday signed legislation to expand U.S. citizenship voting requirements in the state, a measure that critics warn will jeopardize the voter registrations of thousands of Arizona residents.

In signing House Bill 2492, Ducey disputed testimony from local officials and voting rights advocates who say an unknown number of voters — predominantly older, longtime Arizona residents — will be purged from the state's voter rolls because the last time they registered to vote, there was no requirement to provide proof of citizenship. Critics say those voters would then need to register again.

In 2004, Arizona voters approved a ballot measure to add proof of citizenship as a requirement for voter registration. The measure included language that grandfathered in voters who were already registered prior to 2005, when the law took effect.

Marilyn Rodriguez, a lobbyist for the ACLU of Arizona, said HB 2492 supersedes the old law and would now apply the citizenship requirement retroactively.

"So many thousands of eligible voters could lose access to the polls based on specific and targeted criteria," she told the state Senate Government Committee earlier this month. "This bill singles out older voters, on average, and people who have lived in Arizona for a longer amount of time."

County election officials agree, and testified that they'll have to pore over voter registration databases to see who's affected by the change. They say they have no way of knowing exactly the number of impacted voters until they start looking.

One estimate put the tally as high as 192,000 voters. That's the number of Arizonans who were issued a state driver's license prior to 1996 — when the state updated its credentialing process to ensure a driver's lawful presence in the United States — and have not altered their license since, according to the Arizona Department of Transportation.

The timing of when the law takes effect — 90 days after the end of the legislative session — may create even more problems for election officials. Depending on when the session ends, the law could be in place before the state's August primary, or in between the primary and November general election — creating a situation in which voters who cast a ballot in August may no longer be eligible in November.

But in a letter explaining his decision to sign the legislation, Ducey argued the bill "does not disturb the safe harbor granted to Arizona voters" who registered before the state's citizenship requirement was adopted.

"Election integrity means counting every lawful vote and prohibiting any attempt to illegally cast a vote," Ducey wrote. "H.B. 2492 is a balanced approach that honors Arizona's history of making voting accessible without sacrificing security in our elections."

Questions of constitutionality

At its core, HB 2492 is a new attempt to apply citizenship standards to all voters in Arizona, including those who use a federal voter registration form prepared by the U.S. Election Assistance Commission. That form requires voters to check a box declaring under penalty of perjury that they're U.S. citizens and eligible to vote — but it doesn't require documented proof of citizenship, like Arizona does.

The U.S. Supreme Court ruled in 2013 that Arizona couldn't impose a proof-of-citizenship requirement on voters who register with the federal form. The state has since created a bifurcated voting system that allows federally registered voters to cast ballots in federal elections, but not state or local races.

Republican lawmakers have bemoaned an increase in those federal-only voters — more than 11,600 cast a ballot in the 2020 general election, according to Ducey — and made several attempts over the years to restrict their access to the ballot.

The latest effort, signed by Ducey Wednesday, requires election officials to research the citizenship status of those federal-only voters. Under HB 2492, if elections officials can't find evidence that a federally registered voter is a U.S. citizen, that voter can't vote by mail, or cast a vote in presidential elections.

And if election officials find evidence a federally registered voter is not a citizen, the Arizona attorney general would be required to prosecute.

Jen Marson, the executive director of the Arizona Association of Counties, told a Senate committee that HB 2492 puts county election workers in a "terrible position" — choosing to follow a state law that clearly violates a U.S. Supreme Court ruling, or uphold the court's ruling and be charged with felonies under Arizona law.

Even attorneys for the Republican-controlled Arizona legislature warn those measures are likely unconstitutional.

"It's a very clear decision," Marson testified about the Supreme Court ruling. "It's very emphatic and it absolutely nullifies the provisions of [House Bill] 2492. Counties cannot violate federal law."

The new law is expected to face legal challenges, and could perhaps face the scrutiny of a more conservative U.S. Supreme Court than in 2013.

The GOP-backed legislation follows a discredited partisan-led review of the 2020 election in Arizona's largest county, Maricopa. Last year, the state's Republicans enacted sweeping changes to Arizona's early voting process, and stripped some of the election authority from the Democratic secretary of state.

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