The legal battle over the 2024 election is in full swing. The MAGA shenanigans of the Georgia Election Board have overshadowed troubling developments in Arizona. Last week, the Supreme Court indicated it would revisit a case it settled more than a decade ago, allowing a new Arizona law to take effect requiring proof of citizenship to register to vote. By reopening the case at the last minute, after registration had begun, the justices are spreading a false public narrative that non-citizens pose a threat to U.S. elections. It’s the latest sign that the justices are working with former President Donald Trump and may be willing to interfere in the election unless it is decided by margins too wide to manipulate.
The case is Republican National Committee vs. Mi Familia Votawhere the Republican National Committee requested last-minute “emergency” changes to Arizona’s voter registration laws, even though the state’s mail-in vote registration window has already begun. The lawsuit strikes at the heart of voting rights and fair elections: Not only is the RNC trying to prevent tens of thousands of eligible Arizonans from legally casting ballots, it’s also pushing the nonsense that non-citizens vote in U.S. elections. As the libertarian Cato Institute noted, “there is no good evidence that non-citizens voted illegally in large enough numbers to have effectively affected the outcome of the election.” This Supreme Court intervention is misguided, and the stakes couldn’t be higher: Joe Biden won Arizona by just 10,457 votes in 2020, and it’s unclear what impact the court’s new ruling might have in November.
The unsigned order of the court in the RNC case allows an Arizona law to go into effect that requires proof of citizenship to register to vote, strongly suggesting that the court’s conservative wing, three of whom were appointed by Trump, will ultimately strike down part of the 1993 National Voter Registration Act, a key federal voting rights law previously championed by Justice Antonin Scalia, as unconstitutional when it finally hears the case.
While the court in this case granted the RNC's request to create a law requiring documentary proof of citizenship for all new registrations, it declined to grant another law to expunge the 42,301 voters already registered without documentation. Justices Clarence Thomas, Samuel Alito and Neil Gorsuch would have done the latter as well, however.
And the threat isn’t over yet, as the court will have other potential avenues to meddle with Arizona’s voter rolls. For example, Trump policy architect Stephen Miller and his America First group filed a lawsuit in Maricopa County a few weeks ago seeking to force the county recorder to engage in “roll maintenance” by submitting the names of voters who registered without documentation to the Department of Homeland Security and the state’s attorney general.
While Miller’s lawsuit may go nowhere (and hopefully won’t), the court’s intervention during election season could swing the election, even if the law only applies to potential registrants. Voter registration has been surging following President Joe Biden’s withdrawal from the race, with the nonpartisan registration group Vote.org reporting tens of thousands of new registrants nationwide, 83 percent of whom were under the age of 34, in just the first two days after Biden’s announcement. While data from Arizona is not yet available, the trend is continuing in swing states across the country. With the registration period already in full swing, the court’s new ruling means that information previously provided to prospective voters to ensure their right to vote is no longer accurate. This exacerbates existing registration pain points in Arizona, where more than 20,000 residents had their registrations delayed in the July primary — many due to minor technical errors — well before the court’s ruling.
How did we get here? In an era three decades ago when the right to vote enjoyed greater bipartisan support, Congress passed the NVRA to standardize voter registration procedures across the country. To do so, it created a national registration application form, which requires applicants to swear under penalty of perjury that they are U.S. citizens, but voters do not have to submit additional supporting documentation. Nevertheless, a decade later, in 2004, Arizona enacted Proposition 200, which required voters to submit proof of citizenship, such as a passport or birth certificate, to register to vote.
The Supreme Court said in 2013 that Arizona could not do that. In a 7-2 decision authored by Scalia and seconded by Chief Justice John Roberts, the court held that the federal NVRA overrides Arizona's conflicting documentation requirements because “Congress' power over the 'times, places and manners' of congressional elections 'is of the utmost importance and may be exercised at any time and to any extent it deems expedient.'”
Arizona already requires proof of citizenship to vote in state elections, and nearly all Arizona voters provide such proof. However, there are several thousand “federal only” voters in Arizona who have not submitted additional documentation, many of whom register at voting precincts on college campuses (so they are likely college students without driver’s licenses, not noncitizens who are ineligible to vote).
Emboldened by a partisan climate bent on unraveling constitutional norms and the rule of law, Arizona Republicans passed a law in 2022 that—in clear conflict with the 2013 Supreme Court case—sought to reimpose the citizenship documentation requirement for federal elections. The Supreme Court had explained that the NVRA “prevents Arizona from requiring an applicant for a federal form to provide more information than is required by the form itself.” In an era where precedent is no barrier to the court’s pursuit of its ideological goals, the RNC’s latest effort appears to have been successful: Under the court’s order last week, Arizona’s new law requiring all new registrations to provide documentary proof of citizenship will go into effect. And once the case is fully reviewed, which is expected next year, it will be able to revisit the status of the more than 40,000 voters who are already registered.
To make matters worse, the conservative wing of the court has been staggeringly hypocritical in reversing its position here. In the 2020 election, Justices Brett Kavanaugh and Gorsuch invoked the so-called Purcell principle, which stands for the idea that federal courts should not interfere with state voting laws just before an election. The court’s last-minute changes to election rules here could make a difference in November. Not all voters without IDs vote Democratic, but many do. That includes college students who are away from home and thus lack the documentation required by Arizona’s new law. Among 18- to 29-year-old registered voters in swing states, Harris leads Trump by 9 points.
Beyond the age-old strategy of voter suppression, the RNC’s agenda in bringing this case so close to the election is undoubtedly a psychological operation to sow doubt in the presidential election by reviving the debunked conspiracy theory that non-citizen votes are decisive. And they’re not alone: 24 states wrote an amicus brief in support of Arizona, alleging that “foreigners are voting illegally in elections” in numbers sufficient to carry North Carolina for Obama in 2008. In support of these claims, the states cite a single, deeply methodologically flawed and widely debunked study, whose author has long lamented that his work was distorted in this way.
Contrary to conspiracy theories, there are plenty of innocent reasons why people sometimes lack proof of citizenship, many of which have to do with income. Extensive research has shown that nearly 9 percent of eligible voters “do not have an unexpired driver’s license,” while “another 12 percent (28.6 million) have an unexpired driver’s license but do not have both their current address and name.” The same study found that “people in lower income brackets are more likely to think that a photo ID is not required to vote in person or are unsure.” Citizens may not have access to documents that are locked away in a bank safe deposit box, or because they have been lost or stolen during a move or hardship. That’s why the NVRA’s oath requirement works so well: It allows people who don’t have easy access to adequate documentation to vote, while looming the specter of criminal penalties for lying.
Arizona’s restrictions are not only burdensome, they are unnecessary. States have many existing safeguards to ensure that noncitizens are not on voter rolls and cannot cast ballots. For example, states can cross-reference DMV records, jury service records, and Social Security records to ensure that noncitizens do not register to vote.
