State of Elections

William & Mary Law School | Election Law Society

Immigration

Arizona’s Newest Proof-of-Citizenship Law is Potentially Unconstitutional (Again)

· ·

By Sarah Bradley

Arizona has a well-known history of stringent anti-immigration laws and policies, from the widely covered “show me your papers” law—at the time, the strictest anti-immigration law in the country—to more recent busing of migrants to D.C., following Texas’s lead. In its most recent session, the state legislature has followed this trend, passing a law that echoes an attempt in 2004 that was later struck down.

On March 30, 2022, Arizona Governor Doug Ducey signed House Bill 2492 into law, jeopardizing the voter registrations of tens of thousands of state residents. HB 2492 requires voters to demonstrate proof of citizenship at registration or within 30 days of registering to vote, despite opposing Supreme Court precedent.

In 2004, Arizona passed Proposition 200, a highly restrictive anti-immigration law which included a provision requiring voters to present proof of citizenship. After multiple legal challenges, the Supreme Court eventually struck down the proof of citizenship requirement for federal elections. In 2013, the Court heard Arizona v. Inter Tribal Council of Ariz., Inc., ruling that the state could not impose this requirement on voters who use a federal voter registration form. A federal voter registration form, required by the National Voter Registration Act of 1993, is prepared by the U.S. Election Assistance Commission and allows registrants to vote in national elections. “Federal-only” voters are not required to provide proof of citizenship (some states may require proof of identification, a much lower burden). In response to this ruling, the Arizona legislature bifurcated the state’s voting system and imposed the proof-of-citizenship requirement on state and local elections. There are currently around 31,500 federal-only voters in Arizona.

The NAACP, in an amicus brieffiled regarding Arizona v. ITC, noted that throughout the tenure of Proposition 200, Arizona found no instances in which an undocumented immigrant registered or voted in the state, yet rejected the registration applications of over 30,000 residents, with a disparate impact on the Latino population. HB 2492 is poised to have an even more destructive impact on voting access beyond the federal-only voters. 

Critics of HB 2492 have argued that the new law would cause thousands of previously registered voters to lose their access to the polls. Proposition 200 included language that grandfathered in previously registered voters, but HB 2492 would supersede the old law and would retroactively apply the citizenship requirements. Marilyn Rodriguez, a lobbyist for the ACLU of Arizona, told the state Senate Government Committee prior to the passage that “thousands of eligible voters could lose access to the polls based on specific and targeted criteria. This bill singles out older voters, on average, and people who have lived in Arizona for a longer amount of time.” Additionally, proof of citizenship laws have historically had a discriminatory effect on communities of color.

Estimates of the numbers of voters losing access to the polls are as high as 192,000, the number of residents who were issued a driver’s license prior to 1996 and have not altered it since, according to the Arizona Department of Transportation. In 1996, the state began requiring drivers to provide proof of their lawful presence in the United States, and a license is one of very few ways that a resident may prove citizenship.

Governor Ducey, in his defense of the bill, cited the high number of federal-only voters in the 2020 election—over 11,600—as evidence of its necessity to prevent election fraud. The bill’s sponsor, Republican Rep. Jake Hoffman, claimed that it was necessary to protect elections from foreign interference. Hoffman supported former President Trump’s claims that the 2020 election was stolen and was one of the 84 people to act as a fake elector for Trump. He also runs a marketing firm that was banned from Facebook for engaging in “coordinated inauthentic behavior”, running a “troll farm” that advocated right-wing opinions on social media, including the claim that mail-in ballots would lead to fraud. Hoffman’s personal Twitter account was suspended prior to the 2020 election.  

In July, the Department of Justice filed suit against the state, claiming that HB 2492 violates both Section 6 of the National Voter Registration Act and the Civil Rights Act of 1964. Kristen Clarke, Assistant Attorney General for the Civil Rights Division of the DOJ, called HB 2492 “a law that turns the clock back, by imposing unlawful and unnecessary requirements that would block eligible voters from the registration rolls for certain federal elections.” Clarke added that the DOJ “will continue to use all of the tools provided by federal law . . . to . . . protect every qualified American seeking to participate in our democracy.”

There have also been a number of other suits filed by various interest groups. If any of these suits reach the Supreme Court, the bill may be upheld, as it faces a very different Court than in 2013. Arizona Republican legislators have called the bill “a fight worth having,” and Governor Ducey invited potential challengers on the left to “have at it.”

HB 2492 is currently slated to go into effect on January 1, 2023.

The Issue of Issue 2

· ·

By Anna Rhoads

In 2019, the village of Yellow Springs, Ohio, voted to make a small change. That year, Yellow Springs’ 3,800 residents voted on a referendum to allow the tiny minority of the village’s 170 foreign-born residents who were still noncitizens to vote for local offices. The referendum passed with fifty-nine percent of the vote, setting off a chain reaction resulting in a new initiative to amend the state constitution that Ohioans will see on the ballot this November.           

Largely in response to the Yellow Springs referendum and its success, Republican Representatives Jay Edwards and Bill Seitz sponsored H.J.R. 4, a joint resolution to amend Section 1 of Article V, Section III of Article X, and Section III of Article XVIII of Ohio’s constitution. Sponsors introduced the joint resolution on May 17th, and by the end of the month, it passed in the House and came to the Ohio Senate as S.J.R. 6. By June, the joint resolution passed in the Senate, too, becoming ballot initiative Issue 2. Issue 2’s certified ballot language describes the measure as amending the state constitution “to prohibit local government from allowing non-electors to vote.” In practical terms, these amendments would prevent local governments from allowing noncitizens who are legal permanent residents in Ohio to vote in local elections. 

Issue 2’s proponents include Republican lawmakers. The initiative’s supporters argue that the proposed amendments would proactively ensure the clarity of election law in Ohio. Supporters see the initiative as a preventative measure that would avoid policies that have passed in cities in Left-leaning states, like in New York where recent measures allowed noncitizen legal permanent residents to vote locally. They contend that although Ohio and federal law prevent noncitizens from voting, there is a risk that localities will be able to allow noncitizens to vote locally, using the state constitution’s “home rule,” which gives localities ultimate control over local affairs. Supporters, including Ohio Secretary of State Frank LaRose, note that letting noncitizens vote locally could increase administrative burdens. More fundamentally, the initiative’s proponents view American elections as solely for American citizens and believe that allowing noncitizen residents to participate even locally would undermine fundamental American values.

However, Issue 2’s opponents, including the Ohio ACLU, Yellow Springs officials, Ohio’s Democratic lawmakers, and the Ohio Environmental Council Action Fund, take issue with the initiative for several reasons. Issue 2’s opponents note that federal and Ohio law already make citizenship a prerequisite to being eligible to vote and that home rule does not give localities carte blanche to draft laws in conflict with federal and Ohio law. In fact, although Yellow Springs voted to allow noncitizens to vote in local elections, citing home rule as allowing them to make this change, no noncitizens have voted in Yellow Springs (or any other Ohio locality, for that matter) because Secretary LaRose “ordered officials to table the measure.” Secretary LaRose has sent criminal referrals to noncitizens who have allegedly registered to vote, and noncitizens who fail to cancel their registration after a second notice can face felony charges. As such, opponents argue that the initiative is unnecessary and does not serve the prophylactic purposes Republican lawmakers claim. Opponents argue that instead, Republican lawmakers are using the initiative to signal to “Replacement Theory” and “Big Lie” adherents that their violently xenophobic views have merit. As such, opponents view the initiative as a purely political move that “can only add fuel to the wave of fanatical xenophobia.” Opponents argue that this political move is also designed to gin up a wave of Republican voter turnout in November when a United States Senate seat, all five statewide offices, the General Assembly, and control of the Ohio Supreme Court will be up for grabs. Additionally, Issue 2’s opponents say that the initiative’s amendments will change the state constitution’s provisions from a grant of voting rights to a restriction on voting rights. Thus, the initiative stealthily threatens the General Assembly’s power to liberalize voter registration requirements by permitting those who have registered less than thirty days before an election to vote as well as current laws allowing seventeen-year-olds to vote in primaries if they will be eighteen by the general election.

Changing Ohio’s voting laws has been a project of Ohio’s Republican lawmakers since 2020, and Issue 2 continues this trend. However, with measures to allow noncitizen residents to vote locally proving popular in other statesand some of Ohio’s cities, Republicans may need more than a Red wave in November to pass this initiative.