By Howard Fischer
Mail | X: @azcapmedia

PHOENIX — Arizonans who lack proof of citizenship can again sign up to vote in this year’s presidential and congressional races.

The action comes after two of three judges on a panel of the 9th Circuit Court of Appeals late Thursday overturned a ruling to the contrary by a different three-judge panel whose duty it is to rule on pending motions.

The majority of this panel — the one actually assigned to hear the case — concluded the other judges should never have made such a radical change in voting registration rules so soon before the election, saying it would cause chaos.

Thursday’s ruling restored an order issued last year by U.S. District Court Judge Susan Bolton who had concluded that federal law specifically allowed people to register to vote in federal elections without the same kind of proof that Arizona requires of those wanting to cast ballots in state or local elections.

The ruling provoked an angry reaction from Arizona Senate President Warren Petersen who said it is just another example of “the radical 9th Circuit.”

“They routinely engage in judicial warfare to carry out their extremist liberal agenda that’s contrary to the laws our citizens elected us to implement,” said the Gilbert Republican, who vowed to seek immediate review by the U.S. Supreme Court ahead of the November election.

A similar reaction came from Scot Mussi, president of the Arizona Free Enterprise Club, which crafted the 2022 law at issue. He called it “a travesty of law” and “poorly reasoned.”

In the meantime, county election officials are once again able to accept registrations from those using the state form even if they do not have what state law calls “documented proof of citizenship.”

Maricopa County alone, which rejected 202 state forms in the past two weeks that didn’t have such proof, is once again accepting them.

In Pima County, Marion Chubon, the chief deputy recorder, said her office does not process registration forms after the deadline to sign up for the primary.

“We have thousands of state forms dropped off by voter registration groups in the last few weeks,” she said, saying processing them will resume after the deadline to cure primary ballots, which is Sunday.

The underlying fight is over a 2022 Arizona law that requires proof of citizenship to register, a precursor to being able to cast a ballot.

Several rights 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 to support such claims.” They cited a federal law that allows people to register without citizenship proof if they avow, under penalty of perjury, they are entitled to cast ballots.

Bolton agreed, blocking the state from enforcing the mandate.

Two weeks ago, however, a panel of the 9th Circuit that handles legal motions said she was only partly right.

The judges said the state cannot turn away those who use a federal form to register, one that does not require proof of citizenship. They agreed with Bolton that states are required to accept the federal form.

But the judges accepted arguments by Petersen and House Speaker Ben Toma that the state can reject those who sign up using the state form if they don’t also submit proof of citizenship, even if those people are only signing up to vote in federal elections.

The new panel, however — the one that already was assigned to consider the state’s appeal of Bolton’s ruling — said that was wrong, if for no other reason than the timing: It came even as Arizona was signing people up for the Nov. 5 general election.

The judges said there is long-standing Supreme Court precedent that courts should not upset the rules for registration so close to an election.

“The motions panel ... misunderstood the extent of confusion and chaos that would be engendered by a late-state alteration to the status quo of Arizona’s election rules in apparent disregard of the Supreme Court’s admonition,” the majority wrote.

They pointed out there is a separate consent decree with the secretary of state agreeing to direct county recorders to accept the state form, even without proof of citizenship.

What makes that important is Petersen and Toma, seeking to stay Bolton’s order, have to prove they are likely to prevail on appeal. The appellate judges said unless and until that decree is set aside, they are not likely to succeed.

Of the more than 4.1 million registered voters, there are about 35,000 Arizonans who have signed up to vote without proof of citizenship and will be entitled to vote in November not only for president but also weigh in on who is the state’s next U.S. senator as well as who is elected to each of the state’s nine seats in the U.S. House of Representatives.

Central to all of this is the question of whether those who register without proof of citizenship are not legally entitled to vote.

“The federal-only ballots are made up of groups like Native Americans, college students and the elderly,” said Aaron Thacker, spokesman for Secretary of State Adrian Fontes. He said these are people who may not have easy access to the documents the state requires to prove citizenship.

Thacker also pointed out it already is illegal under federal and state law for anyone who is not a citizen to vote in Arizona elections.

Even Toma and Petersen, in their legal filings, failed to document a single case of non-citizens voting.

Mussi had a different take.

“How do you know that they’re not trying to vote?” he said, defending the 2022 law. “It’s a common-sense measure,” saying it balances the state’s need to restrict voting to those legally entitled to cast ballots with various ways that individuals can prove their legal presence.

The new order is unlikely to be the last word, even if the Supreme Court refuses to take up the appeal that Toma and Petersen have promised. The same three judges that just upheld Bolton’s original order, at least for the time being, is set to hear arguments on the whole issue next month.