Facing DOJ lawsuit, Arizona could be model for states to require proof of citizenship to vote

Lawmakers in as many as one in five states have considered legislation to require voters show proof of citizenship – a requirement that drew a federal lawsuit this week and that voting access advocates worry could disenfranchise millions of voters.

A new Arizona law that Gov. Doug Ducey hailed as a victory for “election integrity” – and that could be a model for similar restrictions across the country – now is being challenged as a “textbook violation” of federal law.

The Justice Department on Tuesday sued the state to stop the law requiring voters to provide documented proof of citizenship from going into effect in January 2023, saying it could disenfranchise thousands of voters.

Voting rights advocates say requiring documented proof of citizenship hurts voters without the resources or time to navigate complicated bureaucracies that warehouse documents.

And the electoral consequences, they say, could be significant in places where margins are razor-thin. President Joe Biden beat former President Donald Trump by 10,457 votes in Arizona, where about 4.3 million voters are registered.

The number of voters who could be impacted by widespread adoption of similar laws is unclear. The Justice Department's lawsuit says that "thousands" would be impacted by Arizona's law, but voting access advocates say millions might be disenfranchised around the country if other states follow suit.

Election restrictions: Why Arizona Republicans pushed hard for a voter proof-of-citizenship bill

Citizenship requirement struck down in 2013

Arizona voters approved a ballot initiative to require proof of citizenship to vote in 2004, but the U.S. Supreme Court in 2013 ruled that the law violated the National Voting Rights Act of 1993. Federal courts have struck down similar efforts in other states in the nearly two decades since its inception.

Now, Arizona is taking another crack at requiring voters to prove citizenship, and other states might follow. Mississippi adopted a similar law this year, and the nonpartisan Voting Rights Lab already is tracking dozens of bills with similar provisions.

"I do think it's a good law and I do think it's a good model for other states," said Jason Snead, executive director of Honest Elections Project, a conservative group that has backed new election restrictions in some states.

Non-citizens already barred from voting

Non-citizens are barred from voting in American elections, and previous efforts to require potential voters to prove their status for federal elections have been struck down by courts. Federal voter registration forms require voters to attest under penalty of perjury that they are citizens but not provide proof, such as a passport or birth certificate.

Arizona's law is among a flurry of new election restrictions adopted mostly in conservative state legislatures since the 2020 presidential election. Across the country, state lawmakers have approved new limitations on early voting, ballot dropboxes and polling places.

Its roots, though, run deeper than the claims of a stolen 2020 election that have seeded much of the movement to restrict voting. Voter fraud is exceedingly rare, including in Arizona, where prosecuted election crimes were less than 0.0001% of votes cast over a decade, according to the Arizona Republic.

“What’s happening is that mechanisms of voter suppression are getting more sophisticated and more tailored," said Sylvia Albert, director of voting and elections at the good government group Common Cause.

Challenging Arizona's citizenship law

When the U.S. Supreme Court ruled in 2013 that Arizona's proof of citizenship requirement violated federal law, the state created a bifurcated voter registration system.

Those using a federal voter registration form to vote in federal elections could not be forced to prove their citizenship status, but Arizona continued to require it on a state voter registration form.

That created multiple classes of voters in Arizona, where the number of "federal only" voters has been growing. Ahead of the 2020 presidential election, 36,473 of Arizona's 4.3 million registered voters had used the federal form that does not require proof of citizenship, according to Arizona Secretary of State Katie Hobbs' office.

That is expected to grow this summer when Hobbs' office tallies voter registrations for the 2022 midterm, spokeswoman Sophia Solis said.

In March, though, Ducey signed the new law extending proof-of-citizenship requirements to those federal-only voters as well. Those who don't provide proof are barred by the law from voting in presidential elections or by mail but could still vote in congressional elections.

Ducey said at the time the law balanced accessibility and security, but several groups jumped to challenge it in court.

“Election integrity means counting every lawful vote and prohibiting any attempt to illegally cast a vote,” Ducey said in a letter explaining his support for the law.

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Now, the Justice Department also is fighting the law that Assistant Attorney General Kristen Clarke said "turns the clock back on progress by imposing unlawful and unnecessary requirements that would block eligible voters from the registration rolls for certain federal elections."

"I made it clear from the start that I did not think that this law was constitutional or good policy, for that matter," Hobbs said in a statement provided to USA TODAY.

The Justice Department's lawsuit argues the law violates the National Voter Registration Act and runs against the 2013 Supreme Court decision, with Clarke calling Arizona a "repeat offender" in making it harder to vote.

Snead said the new law is written to get around previous legal problems, though, calling the position that proof of citizenship cannot be used as a qualification to vote a "head scratcher."

“The only motivation here, quite frankly, has to be an attempt to sway the rules of the game," said Tammy Patrick, a former Maricopa County election official and senior adviser to the elections program at Democracy Fund. "They don’t have large numbers of documented fraud in Arizona."

Changing the game

Disqualifying eligible voters who can't prove their citizenship status could swing elections, said Liz Avore, vice president for law and policy at Voting Rights Lab, a nonpartisan group that tracks election legislation.

She pointed to a 2006 Brennan Center for Justice survey that found about 13 million U.S. citizens do not have ready access to citizenship documents and said it could be difficult for many of those voters to get them.

"We know that there are many millions of American citizens who don’t have ready access to documentary proof of it," Avore said. "Barring those citizens from the ballot box is stripping the voice of millions of American citizens from our next election.”

That isn't limited to new Americans. People who were born at home or on reservations or those whose documents were lost in natural disasters could have their right to vote jeopardized by similar laws, Albert said.

More: New election laws could create barriers for voters with disabilities

Accessing those documents can require navigating cumbersome processes and traveling to small government offices to get copies, she said.

“If you are working an hourly job and are the main breadwinner of your family, you can’t go to another state to look at how to go about getting a copy of your birth certificate,” Albert said.

While Arizona and Mississippi so far are the only states to adopt proof of citizenship requirements, Voting Rights Lab found 25 pieces of legislation proposed with similar provisions in 10 states, including Pennsylvania, Idaho and New York.

“We know that bad efforts spread quickly as other states see the success of voter suppression in other states," Albert said.

Contributing: John Fritze, The Arizona Republic

This article originally appeared on USA TODAY: Voting restrictions: Arizona's proof of citizenship part of trend