By Howard Fischer
Mail | X: @azcapmedia

PHOENIX — The state and national Republican parties want an emergency order to block those who register with a federal voter registration form from casting a ballot in this year’s general election.

Attorneys for both groups as well as the top GOP legislative leaders contend that U.S. District Judge Susan Bolton got it wrong when she concluded that federal law allows those without proof of citizenship to cast a ballot in the presidential race. Bolton said as long as they use that federal form — which does not require such proof — they can vote in federal elections.

But the fight playing out at the 9th Circuit Court of Appeals is more than just about the terms of the National Voter Registration Act. At least part of the reason is because those asking for the relief they think that keeping 19,439 Arizonans away from the polls will help GOP candidates.

Attorney Thomas Basile said only 14.3% of those who used the federal form — and can vote only in federal rates — are registered Republicans. By contrast, he told the appellate judges, Republicans comprise 34.5% of total active registered voters in Arizona.

“The judicially mandated inclusion of these individuals in the presidential electorate necessarily impairs the relative competitive position of the Republican presidential nominee,” Basile said.

That margin of difference could be crucial in 2024: Joe Biden beat Donald Trump in 2020 by 10,457 votes, getting the state’s 11 electoral votes.

More than the presidential race could be at stake. The state and federal GOP, along with House Speaker Ben Toma and Senate President Warren Petersen, concede the National Voter Registration Act does, in fact, permit those using the federal form to vote in congressional elections.

But Basile is challenging another part of Bolton’s ruling voiding a 2022 Arizona law that says those using the federal form can only vote in person after presenting documented proof of citizenship and are not eligible for the same vote-from-home convenience entitled to other registered voters. Unless the 9th Circuit overturns that part of her ruling, those 19,439 federal-only voters will be entitled to cast early ballots in the race for the hotly contested U.S. Senate race as well the fight for all nine seats in the U.S. House.

“In overriding the Legislature’s determination that ‘federal only’ voters may not vote for Arizona’s presidential electors or vote by mail, the injunction (issued by Bolton) distorts the competitive environment underpinning the 2024 election in a manner that is unfavorable to the Republican National Committee and Republican candidates,” Basile wrote.

The Republicans are going to get a fight — and not just from the voting rights groups that filed the original lawsuit challenging provisions of the 2022 law.

An attorney for Secretary of State Adrian Fontes said he takes no formal position on the legal fight.

But Craig Morgan is urging the appellate judges not to grant the emergency motion. Put simply, he said, it’s just too late to start making changes in how this year’s elections will be run.

“Election officials across Arizona are preparing for what is expected to be a very active 2024 election cycle,’’ he wrote in his own pleadings.

“Last minute statewide policy changes like those requested in the motion, no matter how small they may seem to some, can (and Secretary Fontes believes will) drastically impact how affected votes are collected and processed,’’ Morgan said. “Such confusion and chaos on the cusp of an election will undoubtedly cause voters to harbor doubts about our election procedures, our election officials, and our elections themselves.’’

The measure at issue specifically stems from the idea that people not in this country legally went to the polls and cast ballots, a contention by Trump supporters that may have affected the outcome.

Sen. Jake Hoffman, R-Queen Creek, a representative in 2022, said what could have enabled that is about 21,000 Arizonans signed up to vote in 2020 not using the state registration form, which has a proof-of-citizenship requirement.

Instead they registered with the form prepared by the Election Assistance Commission that entitles registrants to vote only in presidential and congressional races. More to the point, there is no requirement to show proof of citizenship but only that applicants sign a sworn statement avowing, under penalty of perjury, they are in fact citizens.

Hoffman argued that “ignores the Constitution.’’ He said Congress is allowed to pass laws pertaining to the times, places and manners of electing only representatives and senators.

“The Constitution gives no such power (by Congress) over presidential elections,” Hoffman said at the time, saying that power is reserved to the states. That, he said, means Arizona is free to set voting requirements in presidential races, including proof of citizenship.’’

On signing the measure, then-Gov. Doug Ducey said he accepted Hoffman’s argument 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, in her original ruling, disagreed.

“The plain language of the National Voter Registration Act reflects an intent to regulate all elections for federal office, including for president or vice president,” she wrote last year in enjoining the state from enforcing the provisions while the case plays out in federal court.

“And binding precedent indicates that Congress has the power to control registration for presidential elections.”

Similarly, Bolton said federal law preempts the requirement in the challenged statute that anyone who uses the federal form must provide documented proof of citizenship in order to vote by mail in any race for which they are eligible to vote. She said that’s not what the federal law says.

“Congress recorded that it enacted the National Voter Registration Act not just to establish procedures that will increase the number of eligible citizens who register to vote in elections for federal office, but also to make it possible for federal, state and local governments to implement this chapter in a manner that enhances the participation of eligible citizens as voters in elections for federal office,” Bolton said.

“Further, Congress found that discriminatory and unfair registration laws and procedures can have a direct and damaging effect on voter participation in elections for federal office and disproportionately harm voter participation by various groups, including racial minorities,” the judge continued. “It is the duty of federal, state and local governments to promote the exercise of the fundamental right to vote.”

Hoffman’s legislation was one of several dozen measures introduced in the legislative session closely linked to the “Stop the Steal” movement that insists Trump actually outpolled Biden in Arizona.

Most of those efforts were based on various claims, all unproved, the election process itself was flawed, with everything from fake ballots being injected 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 as well as multiple lawsuits, all unsuccessful.