U.S. Supreme Court to decide if citizenship proof needed in all Arizona elections

In a brief order, the justices said they want to review lower court rulings that have restricted the ability of states to enforce certain requirements to prove both citizenship and residency.

Monday's order shows at least four of the nine justices are interested in hearing arguments from both sides about whether to overturn those rulings and allow Arizona to enforce its 2022 law. 

The order opens the door to the possibility that more than 43,000 Arizonans currently registered to vote could lose that right.

None of that is expected to change in time for the November election, however. The earliest the justices could hear the case is October.

Arizona Secretary of State Adrian Fontes, in a statement, sought to reassure voters.

"Arizona voters should continue registering and voting under current rules,'' he said.

But what the justices decide could make a difference in 2028.

Arizona has required proof of citizenship to register since voters approved a ballot measure in 2004.

At the same time, though, the National Voter Registration Act requires states to accept and use a registration form prepared by the Federal Election Assistance Commission. And that form requires only that applicants avow, under penalty of perjury, that they are U.S. citizens.

The Republican-controlled Arizona Legislature passed a law in 2022 saying anyone registering to vote must provide proof of citizenship, regardless of how they register and what form they use.

Mi Familia Vota and several other groups filed suit, calling the requirement "a baseless assault on Arizona's election system based on a conspiracy theory that non-citizens are voting, despite a persistent lack of credible evidence.''

In a 2024 ruling, the 9th Circuit Court of Appeals agreed to allow Arizona to enforce the proof-of-citizenship requirement — but only for those who try to register using the state form. The judges barred the state from imposing such a requirement on those who use the federal form.

Those who use the federal form and don't also provide proof of citizenship are precluded from voting in state elections. They are permitted to vote in federal elections, for president as well as for members of Congress.

The Republican National Committee, in its petition to the U.S. Supreme Court, contended nothing in the National Voter Registration Act precludes Arizona from requiring citizenship proof, even for federal elections, regardless of the form someone used when registering. 

Overall, the number of Arizonans entitled to vote only in federal elections is small — 43,385 as of the most recent statistics from the Secretary of State's Office.

But also true is that in the 2020 presidential election, Joe Biden defeated Donald Trump by just 10,457 votes in Arizona, winning the state's 11 electoral votes and, ultimately, the presidency. Trump's loss by that margin was cited by Republicans when they pushed through the 2022 state law to expand the proof-of-citizenship requirement to all voters.

And while there were claims the election was affected by votes from noncitizens, no such votes were ever proven.

State and county election officials have said that most of those who choose to use the federal form do so because they do not have easy or immediate access to documents like a birth certificate, which can be used to prove citizenship. Those voters are often college students away from home and members of Native American tribes, they say.

What the justices decide about federal-only voters could end up being moot if Congress approves the SAVE Act — short for Safeguard American Voter Eligibility — being promoted by Trump. If approved, it would amend federal laws to require proof of citizenship when registering to vote, regardless of the method. But that measure has stalled in Congress.

Court will consider another Arizona law, too

The high court also agreed Monday to take up another 2022 Arizona law. This one requires election officials to regularly check their databases to ensure noncitizens are not registered to vote.

The National Voter Registration Act prohibits such wholesale purges within 90 days of an election. But courts also have generally said states can remove people at any time who were never eligible to vote in the first place.

Now the Supreme Court will decide how broad the state's power is to conduct such purges.

Fontes said there is one good thing that came out of the Supreme Court's decision to hear the case.

"After years of legal wrangling and legislation, Arizona does need clarity from the court on how to administer the citizenship requirement for voting,'' he said. "The current process is confusing to voters and results in some voter applications being totally rejected just because of which form they happened to use."

But in agreeing to review both the citizenship requirement and the 90-day purge, the justices appear not to be interested in reviewing two other issues decided against the state by lower courts.

One is another provision in the 2022 changes by the Arizona Legislature, which says anyone registered as a federal-only voter cannot get an early ballot but has to vote in person.

The other is a finding by the 9th Circuit that there is evidence Arizona lawmakers acted with discriminatory intent when they approved the broad proof-of-citizenship requirements.

Appellate Judge Ronald Gould said there is evidence that legislators, in making the changes, knew that there had been no voter fraud. That evidence, he said, included the results of an "audit'' of the 2020 election returns sought by Republicans unhappy that Trump lost the popular vote in Arizona, which confirmed Biden's victory.

"Yet the Legislature proceeded to enact legislation aimed at remedying the voter fraud that was contradicted by its own findings,'' the appellate judge wrote.