A panel of the Ninth Circuit Court of Appeals struck down two Arizona election integrity laws last week. HB 2492 and HB 2243, sponsored by Senator Jake Hoffman (R-Queen Creek) when he was in the State House, were enacted in 2022. Far left groups along with the DNC, the Arizona Democratic Party, and the Biden Administration’s DOJ Civil Rights Division filed lawsuits challenging the laws. HB 2492 required voters to provide documented proof of citizenship (DPOC) in order to vote in the presidential election or by mail, and in order to register to vote in state and local elections. HB 2243 required county recorders to regularly clean the voter rolls to remove noncitizens. The panel held that the laws violated the National Voter Registration Act (NVRA) and the Civil Rights Act
State Senate President Warren Petersen (R-Mesa) posted on X that he would be appealing the decision to the Supreme Court.
“It’s a new year but we have the same, old Ninth Circuit Court of Appeals, playing familiar games of judicial activism,” he said in a statement. “Mere months after being overturned by the Supreme Court in this matter, the Ninth Circuit shockingly ignored the Constitution by blazing an independent trail to reach a very different conclusion. This radicalism undermines confidence in our judicial system, and it has negative consequences for the fabric of our Republic. Legislative Republicans are already working to return to the Supreme Court in defense of Arizona election integrity, and we intend to win.”
The Arizona Free Enterprise Club (AFEC), which helped draft the legislation, issued a statement denouncing the “outrageous” ruling. “It’s clear this circuit court panel is motivated by radical ideology, and not the impartial judgment of the law,” said Scot Mussi, President of AFEC. “After months of legal wrangling over this law, and clear guidance from the nation’s high court, the Ninth Circuit still wrongly believes that it is the final arbiter of the U.S. Constitution and our laws. This ruling will continue to sow doubt into our system of government and will cost much more in taxpayer dollars thanks to the emergency appeal that will be again filed at the U.S. Supreme Court.”
The legal challenges, which were consolidated as Mi Familia v. Fontes, have taken a winding path through the courts. First, a panel on the Ninth Circuit ruled that election officials could reject state voter registration applications that did not have accompanying DPOC, allowing the proof-of-citizenship requirement for state-voter registration forms. However, a second appeals panel overturned that decision two weeks later, and an emergency appeal was filed with the Supreme Court. The Supreme Court rejected the second decision, allowing the DPOC requirement to go into effect during the fall election until last week’s new Ninth Circuit ruling.
The 156-page opinion, which included a dissent almost as long as the majority’s opinion, was authored by Judge Ronald M. Gould, who was appointed to the bench by President Bill Clinton and joined by Judge Kim McLane Wardlaw, another Clinton appointee. Judge Patrick J. Bumatay, who was appointed to the bench by President Donald Trump, dissented.
The majority opinion alleged that the legislators may have acted with “discriminatory intent” in passing the law, going even beyond the findings of the initial trial court, which did not find discriminatory intent. The judges stated that Arizona has “a history of discriminating against minorities and of voting discrimination.” The judges cited a 1909 law — passed decades before Arizona became a state — which required a literacy test in order to vote, and purges of the voter rolls in the 1970s and 1980s which required voters to redo their voter registrations.
While the trial court judge said the plaintiffs hadn’t shown a connection between the older practices and the new laws, the majority said there is modern day evidence of discrimination due to the legislature investigating election wrongdoing in the 2020 election, not finding any in its audit, yet still passing the election integrity laws. “The audit did not reveal any evidence of voter fraud, yet the Legislature proceeded to enact legislation aimed at remedying the voter fraud issue that was contradicted by its own findings.”
However, the judges ignored the fact that the audit was repeatedly thwarted by Maricopa County officials, who refused to turn over documents and hardware requested by the State Senate’s audit.
The judges also said that AFEC used discriminatory language in its materials about the bill, by using a heading of “how more illegals started voting in AZ.”
The court strained to distinguish the Supreme Court’s reversal of its opinion striking down Arizona’s ballot harvesting law in Brnovich v. DNC, claiming that the “main evidence of discriminatory animus in the legislative process” was weaker. That included “a former senator’s ‘unfounded and far-fetched allegations of ballot collection fraud’ and a ‘racially-tinged’ video created by a private party.”
The opinion heavily relied on a 2018 agreement known as the LULAC Consent Decree that was entered into by then-Secretary of State Michele Reagan, which election integrity experts label a mistake since they believe the state could have defeated the lawsuit filed by the far left group, League of United Latin American Citizens. That agreement required county recorders to register otherwise eligible voters for federal elections regardless of whether they provided DPOC.
The majority opinion alleged that the laws would “likely have a discriminatory impact” on naturalized citizens. They claimed that “naturalized citizens would be at risk of county recorders’ subjective decisions to investigate their citizenship status because of the ‘reason to believe’ provision, which will not apply to U.S.-born citizens.” However, the judges did not explain how that could result in a detriment to naturalized citizens.
Bumatay, who is Filipino, denounced the majority’s decision and its finding of discrimination in his dissent, “This time, ignoring the Supreme Court’s direction on at least the state voter-form issue, it again affirms the injunction wholesale. But even more, the majority thinks that the district court didn’t go far enough in overturning Arizona’s voter-verification laws.”
He said the laws shouldn’t have been struck down for violating NVRA “because the Constitution doesn’t grant Congress the power to regulate who may vote in presidential elections.” He noted that the Elections Clause in the Constitution “doesn’t govern presidential elections.” While it “may give Congress power over registration in congressional elections, it doesn’t extend that authority over presidential elections.” He said the Electors Clause gives nearly all the authority over presidential elections to the states. “Congress merely has authority to choose the date of the presidential election and date of the electoral college vote.” Much of Bumatay’s dissent went over the history of interpreting that part of the Constitution and case law contradicting the majority’s opinion.
Bumatay argued that NVRA doesn’t preempt Arizona law requiring DPOC to vote by mail. “[T]he NVRA’s text does not support preempting Arizona’s mail-voting requirements. The NVRA only mandates that States ‘accept and use’ federal voter registration forms ‘for the registration of voters in elections for Federal office,’” he said. “Once a State has complied with its obligation to register the federal-form applicants to vote, nothing prevents the State from prohibiting registered voters from voting by mail unless they meet certain conditions.” Additionally, “no federal law requires States to allow all its citizens to vote by mail.”
Similarly, he said the LULAC Consent Decree doesn’t bar the state from asking for DPOC. “The view that a settlement by a single state executive-branch official may forever curtail the state legislature’s lawmaking power presents disturbing separation-of-powers concerns.” He said it opened the door for abuse. “A state official could collude with like-minded parties to “sue and settle” to prevent a legislature from enacting contrary policies.”
He concluded, “Unfortunately, they all but find discriminatory intent based on the weakest of evidence. Simply, the majority views any voter-verification requirements as discriminatory voter suppression.”
The panel remanded the case to the trial court judge, U.S. District Court Judge Susan Bolton, who was appointed to the bench by Clinton and known for progressive rulings such as striking down much of Arizona’s 2010 broad law against illegal immigration, SB 1070.
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Rachel Alexander is a reporter at The Arizona Sun Times and The Star News Network. Follow Rachel on Twitter / X. Email tips to [email protected].
