Supreme Court deals Arizona Republicans a partial victory in voting case

The U.S. Supreme Court again weighed in on an election-related controversy in a key swing state last week, handing Arizona Republicans a victory that could make it harder for thousands of people to register to vote.

The dispute centers on a law that Arizona Republicans passed in 2022 meant to require new voters to prove their citizenship in order to register to vote. The law had never taken effect because lower courts said it conflicted with federal law and blocked it.

But a narrow majority of the high court on Thursday allowed part of that law to go into effect. Five conservative justices agreed to let Arizona require proof of citizenship from people who registered to vote using a state-generated form. 

Meanwhile, the five-justice majority kept other parts of the law from taking effect. Specifically, they did not allow Arizona to require proof of citizenship from people who used a federal form to register instead of a state-generated form. Arizona officials say 42,301 people used the federal document. Under Arizona law, those people can vote in federal elections but not state or local contests.

Congress required states to accept and use the federal form in the 1993 National Voter Registration Act, also known as the “Motor Voter” law. The federal form requires applicants to attest, under penalty of perjury and potential deportation, that they are U.S. citizens.

The justices did not offer any explanation in their brief order last week. Four members of the court—Sonia Sotomayor, Elena Kagan, Amy Coney Barrett and Ketanji Brown Jackson—voted to block the entire law. But three conservative justices—Clarence Thomas, Samuel Alito and Neil Gorsuch—indicated they would have let the entire law take effect.

The Republican National Committee supported the citizenship verification law, while the Biden administration opposed it.

RNC co-chair Lara Trump characterized the high court’s decision as a “huge win” during a Fox News interview Sunday. “We took it to the Supreme Court because Democrats in the state of Arizona were attempting to let people register to vote without ID,” she said. “We said, ‘You need to be able to determine whether or not these are U.S. citizens before they register to vote.’ The Supreme Court agreed with that, and the great news is that it sets precedent across the country so other states can take this and utilize it as well.”

Arizona Secretary of State Adrian Fontes, a Democrat who oversees elections, said in a statement that state officials would follow the court’s order “while continuing to protect voter access and make voting a simple process.”

“My concern,” he said, “is that changes to the process should not occur this close to an election. It creates confusion for voters.”

Even small changes could have a big impact on elections in Arizona. With more than 3.3 million votes cast in the 2020 presidential election, for example, Democrat Joe Biden won the state over Republican Donald Trump by little more than 10,000 votes. Trump defeated Democrat Hillary Clinton there in 2016 by slightly more than 91,000 votes.

Republicans in recent years have raised the specter of non-citizens voting in federal elections, even though those incidents are exceedingly rare.

An analysis by the Brennan Center for Justice, a liberal group, found just 30 incidents of suspected non-citizen voting in 2016, out of 23.5 million votes. “Even suspected—not proven—noncitizen votes accounted for just 0.0001% of the votes cast,” wrote Sean Morales-Doyle, the director of the group’s voting rights program. And doing so is a federal crime and a state crime in every state, he noted.

Still, the Republican-controlled U.S. House passed a measure in May that would repeal a law in Washington, D.C. that allows non-citizens to vote in local elections (not federal elections), although that proposal is unlikely to advance in the Senate, where Democrats hold a majority. More than a dozen cities outside of D.C. also allow non-citizens to weigh in on local contests.

“Noncitizen voting, whether it’s one vote or a million votes, dilutes the voting power of the citizen,” U.S. Rep. August Pfluger, a Texas Republican who sponsored the bill, said at the time. “Congress must act clearly and decisively to bar noncitizens from voting in any election, including in Washington, D.C.”

On the campaign trail, Donald Trump and his running mate, U.S. Sen. JD Vance of Ohio, have also touted conspiracy theories about Democrats recruiting noncitizens to vote in presidential elections.

But the controversy goes back much further in Arizona. In fact, the Supreme Court in 2013 issued a decision concerning the same dispute over requiring proof of citizenship from applicants using the federal form. A seven-justice majority of the court, in an opinion written by Justice Antonin Scalia, concluded that Arizona could not require additional documentation for applicants using the federal form. Chief Justice John Roberts, along with Kagan and Sotomayor, joined that decision. Thomas and Alito dissented.