Voter suppression or confidence boosting? Daylong arguments cap testy trial on AZ voting laws

Lawyers debated whether two Arizona voting laws would suppress voter rights or boost confidence in elections during a daylong federal hearing Tuesday. The outcome of the case will have potentially profound effects on the state's presidential election next year.

At issue is a pair of bills legislative Republicans passed in 2022 and then-Gov. Doug Ducey signed into law. They were immediately challenged in federal court.

House Bill 2492 changed the criteria for proper identification when voting or registering to vote. It banned people who could not produce official proof of citizenship, like a passport or post-1996 driver’s license, from voting or registering to vote. It also required the state Attorney General’s Office to investigate all cases in which noncitizens attempted to vote or register.

House Bill 2243 required county elections officials to cancel the registration of any voter who didn’t have proof of citizenship or had moved or obtained a driver’s license in a different state.

While a federal judge in September voided a key provision of the laws, still in dispute is whether the laws would discriminate against naturalized citizens and voters of color, or whether they would bolster the integrity of Arizona's elections.

Attorneys for the array of plaintiffs — which ranged from the U.S. Department of Justice to numerous nonprofits representing minority and voting-rights groups — argued the bills would harm some of the state's most vulnerable voters by subjecting them to unnecessary requirements that could cancel their registrations.

“What legislators cannot do is stoke disbelief in our election integrity and then use it as a stalking horse to make it harder to vote," said Danielle Lang. An attorney with the Campaign Legal Center in Washington D.C., she is representing several Latino and tribal organizations, as well as the Arizona Democracy Resource Center.

Defense attorneys countered the plaintiffs are dealing in hypotheticals and have failed to produce anyone who would actually be harmed by the new laws.

“If this truly was going to be a problem, you would think it would have popped up by now," said attorney Kory Langhofer.

He is representing Senate President Warren Petersen and House Speaker Ben Toma, the current GOP leaders in the Legislature.

Both bills were sponsored by now-Sen. Jake Hoffman, a Queen Creek Republican who is chair of the Arizona Freedom Caucus and one of the 11 Republican "fake electors" in 2020.

Although Hoffman was the sponsor, the bills were championed by the Free Enterprise Club with little questioning from GOP lawmakers, the plaintiff attorneys argued.

They noted that Toma, in a court-ordered deposition, said he was unaware of last-minute changes to the bill that would require cancellation of certain voter registrations until he was deposed late last month.

The plaintiffs hammered on what they said was the intentional discrimination built into the legislation. They pointed to evidence they presented during a weeks-long trial in November, arguing the state, including the office of Attorney General Kris Mayes, did not provide any evidence of current practices leading to voter fraud.

“When these laws are implemented, they will harm people,” said attorney Christopher Babbitt, representing the Democratic National Committee and the Arizona Democratic Party.

Specifically, the laws would hurt voters of color and naturalized citizens, Babbitt told U.S. District Court Judge Susan Bolton.

That's because a provision in one of the bills imposes tighter regulations on "federal-only voters," who currently can register to vote without having to provide documents proving their citizenship. Instead, they attest in an affidavit that they are U.S. citizens.

But House Bill 2243 would require county recorders to regularly match the names of these voters against certain databases, such as that maintained by the state Motor Vehicle Division, and cancel the registration of anyone who did not provide documents to back up their citizenship status.

The practice also could harm voters who registered before 2004, when state voters approved Proposition 200. The measure required documents proving citizenship in order to vote. A monthly check could knock these voters off the rolls with little time to show the required proof before an election, said Ernest Herrera, an attorney with the Mexican American Legal Defense and Educational Fund, representing Promise Arizona and the Southwest Voter Registration Education Project.

It takes time to track down an original birth certificate, or apply for a passport, Herrera said. The law lacks a "safety valve" that would ensure a voter would have time to provide the proof before being barred from voting, he said.

Such tactics, Herrera and others argued, are an attempt to limit the pool of voters, especially those only registered to vote in the presidential race. In 2020, Joe Biden's win in Arizona was razor thin, less than 11,000 votes.

Langhofer said the plaintiffs have failed to prove that the bills were passed with discriminatory intent. He waved aside testimony from then-state Sen. Martin Quezada, a Democrat, that challenged comments from Republican Sen. Sonny Borrelli. Quezada said Borrelli made numerous racially motivated comments. Borrelli has said he doesn't recall.

Bolton agreed with Langhofer that the comments of one lawmaker can't speak for the sentiment of the full Legislature.

“It doesn’t cause the bill to be intended to discrimination," she said.

Josh Whitaker, a state assistant attorney general, referred several times to a 2006 federal case involving the voter-approved requirement to show proof of citizenship. The ruling, in a case called Gonzales v. Arizona, supports the state's argument that the new laws were not created with discriminatory intent, Whitaker wrote in a court filing.

Among other things, that ruling concluded Proposition 200 "does not have a statistically significant disparate impact on Latino voters," and "did not intentionally discriminate against naturalized citizens."

But Lang said no one presented the evidence that backed up the Gonzales case, undermining the attorney general's continued references to it.

“You can’t rely on any of those factual findings as findings that are relevant to this case,” she said.

Bolton took the case under advisement after the 5 1/2-hour hearing. She is expected to rule in the spring.

Attorneys on both sides are expecting appeals and want to expedite the case to have it resolved in time to take effect for the 2024 primary and general elections.

Reach the reporter at maryjo.pitzl@arizonarepublic.com 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 judge expected to rule in 2024 on stalled GOP voting laws