Department of Justice sues over Arizona voting law
Download mp3 (9.05 MB)The Department of Justice is asking a federal judge to block Arizona from enforcing a new law about who can vote for president.
In a lawsuit filed Tuesday, the agency contends Arizona has no legal right to demand proof of citizenship from those who use a federal voter registration form to vote in federal elections. Assistant Attorney General Kristen Clarke, who heads the agency's civil rights division, said that runs afoul of the National Voter Registration Act.
Clarke also said the state is a "repeat offender," approving the requirement earlier this year in HB 2492 despite a 2013 U.S. Supreme Court ruling to the contrary.
But Clarke said the problems with HB 2492 are deeper.
She pointed out that the legislation also imposes some new requirements on everyone who registers, requirements her agency — and federal law — considers illegal because the information is not "material" to whether someone is eligible to vote.
Most notably, the new law that is set to take effect at the end of the year says that all voter registration forms must include an individual's place of birth.
"Prior to HB 2492, Arizona voter registration forms did not require applicants to provide their specific city or location of birth — and for good reason," Clarke told reporters at a telephonic news conference. "That information is not material to establishing whether a voter is a U.S. citizen because of naturalization and expatriation patterns, among other reasons."
Arizona Attorney General Mark Brnovich lashed out at the Department of Justice for pursuing the case.
"In addition to free rooms and transportation for those illegally entering our country, the DOJ now wants to give them a chance to vote," he said in a prepared statement, noting he has done legal battle with the Biden administration multiple times. "I will see you in court — again."
And Rep. Jake Hoffman (R-Queen Creek) who sponsored the legislation, said the lawsuit "ignores the Constitution."
He said that document does allow Congress to pass laws pertaining to the times, places and manners of electing representatives and senators.
"The Constitution gives no such power (by Congress) over presidential elections," Hoffman argued, saying that power is reserved to the states. And what that means, he said, is Arizona remains free to set voting requirements in presidential races, including proof of citizenship.
But the question of whether the legislation is legal or constitutional is now in the hands of U.S. District Court Judge Susan Bolton.
Hoffman's legislation was one of several dozen measures introduced in the just-completed legislative session closely linked to the "Stop the Steal" movement that insists that Donald Trump actually outpolled Joe Biden in Arizona.
Most of those efforts were based on various claims, all unproved, that the election process itself was flawed, with everything from fake ballots being injection into the system to tabulation equipment being reprogrammed by outside sources. Some have remained unconvinced despite an independent review conducted by Maricopa County which found that its counting machines were never connected to the internet.
This measure specifically stems from the idea that people not in this country actually went to the polls and cast ballots, a contention by Trump supporters that may have affected the outcome which showed Biden won Arizona by 10,457 votes.
What could have enabled that, Hoffman said, is that about 21,000 Arizonans have signed up to vote using not the state registration form, which has a proof-of-citizenship requirement, but the form prepared by the Election Assistance Commission. And that form, which entitles registrants to vote only in presidential and congressional races, mandates only that applicants sign a sworn statement avowing, under penalty of perjury, they are in fact citizens.
HB 2492 was designed to eliminate that possibility, at least in presidential races.
"This bill does nothing other than to ensure that non-citizens are not voting in Arizona elections and American elections, which I might say one could classify non-citizens voting as foreign influence in our elections," he told colleagues.
Clarke said the lawsuit should come as no surprise to Hoffman or the Republican lawmakers who voted for it.
"HB 2492 is in direct conflict with the 2013 U.S. Supreme Court decision," Clarke said. That struck down Proposition 200, a 2004 measure requiring people to provide citizenship when they register to vote.
In that 7-2 decision, Justice Antonin Scalia said the state law was preempted by the National Voter Registration Act. And he pointed out that law requires states to "accept and use" the federal form.
And said that attorneys for the Legislature "warned legislators" federal law preempts a requirement for proof of citizenship from those registering with the federal form to vote in federal elections.
"Nonetheless, the Legislature ignored these warnings and enacted HB 2492 anyway," she said.
As to that place-of-birth requirement, Clarke said that runs afoul of the 1964 Civil Rights Act.
"This law prohibits election officials from denying the right of any individual to vote in any election because they made an error or omission that is not material in determining whether they are qualified to vote in that election," she said.
Clarke cited a 2003 ruling by a federal appeals court ruled that Congress enacted the "materiality provision" to "address the practice of requiring unnecessary information for voter registration." That, the court said, would increase the number of errors that someone could make on the form ... which would increase the number of errors or omissions, "thus providing an excuse to disqualify voters."
Hoffman, however, said the contention by the Department of Justice that Arizona has not required would-be registrants to provide a place of birth is "patently false." He pointed out that the state voter registration form provided by the Secretary of State's Office does ask "state or country of birth."
While Brnovich and Hoffman lashed out at the Department of Justice, that wasn't the response of Secretary of State Katie Hobbs who, as the state's chief election officer, is the named defendant.
"I made it clear from the start that I did not think this law was constitutional, or good policy," said Hobbs, a Democrat.
In his own statement, House Minority Leader Reginald Bolding (D-Laveen) said Arizona has "an ugly history" of disenfranchising Indigenous voters and other voters of color.
"We warned the governor that he was writing a sad new chapter in that history by embracing the Big Lie and signing this bill," he said in a prepared statement.
Arizona Gov. Doug Ducey press aide C.J. Karamargin said his boss had no immediate comment. In March, however, on signing the measure, Ducey said he accepted Hoffman's argument that there is a "legal nuance" that allows the state to seek citizenship proof in presidential contests that it cannot seek in congressional races. He said it's also the right thing to do.
"I believe voter ID is Step 1 of being able to vote, and proof of citizenship along with that," the governor said at the time. "This bill ensures that."
Bolton has set no date for a hearing.
