How a proof-of-citizenship voting rule may tilt a key swing state

A legal fight is raging in Arizona over requiring proof of citizenship to vote in federal elections, with potentially high stakes for this year's presidential race in the swing state.

Republican lawmakers hope to convince the courts — and ultimately, the U.S. Supreme Court — that every voter must demonstrate citizenship when they register to vote. Currently, in Arizona and elsewhere, people can register without showing papers and attest that they are legal citizens, under penalty of perjury.

But skepticism about these attestations have grown, fueled by conspiracy theories that undocumented immigrants are stuffing the nation's ballot boxes.

"Requiring proof of citizenship to vote isn’t a partisan issue; it’s just common sense," said Jake Hoffman, a Republican state lawmaker who introduced the 2022 law at the heart of the current legal battle. Since Hoffman's bill passed, several other Republican-controlled state legislatures have taken up legislation that would make documents proving citizenship a requirement to register to vote and would institute checks on existing voter rolls.

Civil rights activists disagree, noting that many citizens — particularly low-income voters and voters of color — may not be able to easily obtain the requisite paperwork, such as a birth certificate or passport, to prove their citizenship.

"Noncitizen voting is vanishingly rare," said Sara Carter, an attorney with the Brennan Center for Justice. “It’s against the law, and it’s incredibly easy to get caught.”

One thing both sides do agree on: The stakes are high.

In an election year in which a newly reshaped presidential race could hinge on several thousand votes, who gets to vote is crucial — especially in a battleground state like Arizona, where the last presidential race resulted in a razor-thin 10,457 vote win for Joe Biden.

How the law came to pass

A 1993 federal law called the National Voter Registration Act allowed people to register to vote even if they don't have papers showing they are citizens.

Instead, these voters must attest, under penalty of perjury, that they are citizens. Voters who are found to have lied on their registration form are subject to fines, and, if they are in the county illegally, deportation.

In 2004, responding to concerns about illegal immigration, Arizona became the first state to require proof of citizenship for all voters. The ballot measure won with 56% voter approval. But it triggered a federal lawsuit initially brought by the Intertribal Council of Arizona that dragged on for nine years.

The ensuing protracted legal fight ended with an agreement between Arizona and federal officials that limited those without citizenship documents to voting only in federal races. This "two-track" system became the target of the 2022 legislation, with the end goal of getting Arizona's case before the U.S. Supreme Court, eliminating the dual system and requiring all voters to show proof of citizenship.

Supporters are hopeful they can get an emergency request considered by the high court before Arizona voter registration closes on Oct. 7.

As of late July, 24,500 registered Arizona voters are allowed to only pull ballots in federal races.

More states seek citizenship proof

"This is just a commonsense safeguard for our election," said Scot Mussi, president of the Arizona Free Enterprise Club, a nonprofit that advocates for conservative causes. The club supports the ongoing legal fight waged by GOP legislative leaders. "We have a very easy streamlined process to register to vote."

The idea is catching on in Republican states. Louisiana this year passed a law that requires all new voter registration applicants to provide proof of citizenship; a bill on New Hampshire Gov. Chris Sununu's desk would amend that state's same-day voter registration rules to require citizenship proof.

In July, the Republican-majority House of Representatives approved the SAVE Act, which would make proof of citizenship a requirement to register to vote nationally. It is not expected to get any traction in the Senate, where Democrats hold a slender majority.

The SAVE Act is backed by former President Donald Trump, who has been falsely claiming for years that noncitizens are widely voting in U.S. elections. The increase in states passing laws to require proof of citizenship follows Trump's false claims that he lost the 2020 election through voter fraud.

North Dakota does not have voter registration. But under a 2023 law, residents who show up at the polls and present an ID that indicates they are a noncitizen must have their ballot set aside and given a chance to provide updated documents that establish their citizenship.

More: Speaker Mike Johnson said noncitizen voting is a 'threat.' The facts say otherwise

Scant evidence of illegal voting

Critics call the fixation on noncitizen voters a damaging distraction.

Carter, with the Brennan Center, points to studies, such as one the center did in the wake of the 2016 election, that found scant evidence of this happening.

That study surveyed 42 voting jurisdictions covering 23.5 million voters. The key finding: about 30 reports of suspected noncitizen voting, or 0.0001% of votes cast.

The documents that typically prove citizenship are not always at hand when a person decides to register to vote, Carter said.

“Maybe your birth certificate is in a safe deposit box at the bank," she said. Or, in her case, in a drawer at her parents’ house in another state.

Another study, completed this year, concluded that more than 21 million Americans of voting age didn't have ready access to documents proving they are citizens. That equated to 9% of the voting population.

"Convenience is so important to voter participation," Carter said, adding the extra efforts to search for those documents may deter people from registering.

“All of this discussion of noncitizen voting is part of the election denier playbook," she said.

There is hardly any evidence that noncitizens have voted in Arizona, but Republicans point to a porous border to argue more controls are needed

Tighter rules could block legal voters

For many Arizonans, the citizenship question is resolved when they get a state driver's license. The state application requires proof of citizenship and applicants can opt to use that proof to register under the "motor voter" provisions of the National Voter Registration Act.

Alternatively, people who are not citizens but are lawfully present in Arizona, can get driver's license if they present an alien identification card, or other approved ID. That does not qualify them to vote.

But there are populations of native-born citizens for whom proof of citizenship is not easy to come by. Native Americans are among the minority groups disproportionately affected, said Arizona state Sen. Sally Ann Gonzales, a Tucson Democrat and a member of the Pascua Yaqui tribe.

“Sometimes Indigenous people can’t do that, especially older folks who were born at home," Gonzales said of producing proof of citizenship. "Their records weren’t recorded.”

Gonzales has a tribal ID, which counts as citizenship verification, but not everyone carries that around in their purse or wallet, she said.

Arizona attorney Danny Arellano has been fighting Arizona's attempt to require citizenship proof from all voters and to end the "federal only" voter exception.

"It very realistically can keep people off the voter rolls," he said, noting not all U.S. citizens can access their birth certificate or a passport. Some of these documents might have been destroyed; others might not even exist.

Recently naturalized citizens are most likely to be affected by the push for documents since their paperwork might not be processed in time to meet the registration deadline, he said. Students enrolled in Arizona colleges and universities are another concern; many don't bring their birth certificates when they arrive from out of state.

"I get what they're trying to do," Arellano said of Republican state lawmakers. "But there's no feasible way to do this without harming legitimate voters."

Court ruling blocks some Arizona voters, then doesn't

In a July 1 motion to the 9th Circuit of Appeals, Arizona's Republican legislative leaders, joined by the Republican National Committee, argued the GOP would suffer a competitive disadvantage if the state continued to register voters who attest they are citizens but don't provide documents proving their status.

They argued the percentage of Republican voters registered as federal-only is disproportionately smaller than the percentage of GOP voters statewide, giving an advantage to Democrats.

In mid-July, they got a narrow win.

The 9th Circuit stayed an injunction that had blocked the requirement to show citizenship papers in some instances. That meant that going forward, anyone who registers to vote with a state-supplied form must produce citizenship papers or their application will be rejected. The matter was subject to appeal.

Within the first 10 days of the court's stay, Maricopa County, which includes Phoenix, had rejected about 200 state registration forms due to lack of documents proving citizenship.

State Senate President Warren Petersen, a Republican, hailed the court ruling, even though the court denied his request to block federal-only voters from voting by mail and to extend the document requirement to people who use the federal voter registration form.

"This is a victory for election integrity in Arizona," he wrote on social media. "Only U.S. citizens should be allowed to vote in our elections."

That victory was short lived. Two weeks after that ruling from a "motions panel" of the court, the 9th Circuit reversed course, lifted the stay and directed Arizona to revert to its two-track system, where people unable to produce citizenship documents can register to vote and cast ballots in federal elections.

Petersen promised an emergency appeal to the U.S. Supreme Court. And he lambasted the court he had just praised, arguing its Aug. 1 order is "another example of why the radical 9th Circuit is the most overturned circuit in the country."

Within the first 10 days of the court's stay, Maricopa County, which includes Phoenix, had rejected about 200 state registration forms due to lack of documents proving citizenship.

Timing is important. There's usually an uptick in voter registration ahead of a presidential election said Ceridwen Cherry. She's the legal director of Vote Riders, a nonprofit that helps people register to vote and navigate the often complex web of state requirements.

She worries the on-again, off-again requirements from the recent court rulings could deter people who want to register to vote.

"The current two-tiered registration system in Arizona is already extremely confusing, but the whiplash created by these back-to-back court rulings is likely to exacerbate that," Cherry said. "If the Supreme Court were to change the registration requirements in Arizona yet again prior to the election, voter confusion is certain to increase even further."

She said her organization will double down on registration efforts in the coming weeks.

"Our goal is to make sure that every Arizona voter has the documentation they need to be able to register and cast a ballot as a full ballot voter in all local, state and federal races in Arizona," Cherry said.

Reach the reporter at [email protected] or at 602-228-7566 and follow her on Threads as well as on X, the platform formerly known as Twitter @maryjpitzl.

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This article originally appeared on Arizona Republic: Arizona's proof-of-citizenship to vote rule may swing the swing state