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

Election Law Society · January 11, 2023 ·

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.

She Doesn’t Even Go Here: Proof-of-Residency Requirements in Kansas Elections

Election Law Society · January 15, 2018 ·

By: Emma Dolgos

In May 2017, President Trump appointed Kris Kobach, Kansas Secretary of State, to a new Commission on Election Integrity to assist in the study of voter fraud, improper voter registration, voter suppression, and other voting irregularities. Just one month later, Kobach announced his campaign for governor of Kansas. Kobach’s public statements—both as Vice-Chair of the Commission and a gubernatorial candidate—have led to increased attention on Kansas’ state election laws, particularly the laws related to fraudulent voting.

While a number of civil rights groups have been targeting proof of citizenship laws in Kansas as they affect immigrants to the United States, few groups have given equal attention to proof of residence laws that affect current American citizens. The Kansas constitution requires a voter to reside in the state of Kansas. Further, Kansas Statutes Annotated § 25-407 states that residency encompasses a person’s place of habitation in which he or she has the “intention of returning.” The law, in its current form, hinges on the intent of each individual voter, which is arguably challenging for the state to disprove.

Proponents of this proof of residency law, including Kobach, argue that the law protects state elections from the undue influence of out-of-state voters. Kobach, in his criticism of New Hampshire elections, argues that voters have not met the legal requirements to obtain a state driver’s license and are therefore nonresidents of the state. These nonresidents do not have as much as an interest in or attachment to the state. The argument follows that nonresident votes constitute voting fraud because they are cast by ineligible voters and because they cancel out residents’ votes. This mirrors Kobach’s argument about Kansas’ proof of citizenship laws; he contends that “[e]very time an alien votes, it cancels out the vote of a U.S. citizen.” If too many nonresidents vote, they will have a disproportionate influence on state electoral outcomes.

However, opponents of Kansas’ residency requirement argue that the law is not tailored enough to solve the nonresident, fraudulent voting problem. While the law requires an intent to return to Kansas, it does not provide for a verification method. The County Election Officer determines whether an address is in located in the voting district, but the officer does not verify if the address corresponds to the specific voter. Election officers do not even have to ask for paperwork—deeds, leases, bills, and so on—connecting voters to a residence. Moreover, Kansas’ voter identification laws permit a voter to present a driver’s license from Kansas or from another state within the United states. Thus, election officials could not rely on a voter’s identification to indicate his or her intent to remain in Kansas for residency purposes. This dilemma seemingly makes the intent of a resident unprovable. People can openly abuse the law by claiming intent to return to an address “they no longer own and no longer have any legal right to occupy.”

These deficiencies in administration of the law begs the question, what is necessary to demonstrate an intent to return to Kansas? Perhaps Kansas should follow the lead of New Hampshire, the very state Kobach criticized for its ineffective residency laws. To give teeth to the law, the Kansas legislature could consider adding a provision requiring voters to provide documentation tying the voter to the address. For college students, documentation might include proof of enrollment or a “room-and-board” receipt rather than a utility bill or deed. Further, a backup mechanism would need to be set up for those voters who could not produce documentation at the time of registration.

There are legitimate concerns with ineligible voters canceling the power of valid voters in both state and federal elections. While attention predominantly goes to noncitizen voting laws, it is important to remember that valid voters can be harmed by residents from other states voting in Kansas or by residents from one county voting in another. A resident from Kansas likely would not want a New York resident choosing their representatives. That New York resident doesn’t even “go” to Kansas in the sense that she arguably does not share the same interests and concerns as a Kansan.

Since Kobach has drawn national attention to nonresident fraud problems in New Hampshire, it seems imperative that he—and the Kansas legislature—seriously discuss the future of their own proof of residence provision.

 

How to Help the Homeless Vote in Hawaii

Election Law Society · November 15, 2017 ·

By: Avery Dobbs

The state of Hawaii has had the lowest voter turnout rate in the country in the past five presidential election cycles. While the reasons for low turnout rates are nuanced and multifactor, it is safe to say that at least part of the problem is inaccessibility of the polls for Hawaii’s many homeless residents. Hawaii currently has the highest rate of homelessness per capita in America with over seven thousand homeless residents in the state. Homeless residents are extremely vulnerable to public regulations but often have a limited say in decision making due to impediments to voting while homeless. While the only legal requirements for voting in Hawaii are 1) being properly registered to vote, 2) being a U.S. citizen and resident of Hawaii, and 3) being over the age of 18, the issue for homeless voters is how to register to vote without having an address or a photo ID. [Read more…] about How to Help the Homeless Vote in Hawaii

A Bad Year for Kansas’s Kobach and Newby

Election Law Society · March 17, 2017 ·

By: Norma Volkmer

It has not been a good year for Kansas Secretary of State Kris Kobach and former Johnson County, Kansas Election Commissioner Brian Newby. Newby is currently the executive director of the U.S. Elections Assistance Commission, where in January he approved Kobach’s plan to alter the federal voter registration form to require proof of citizenship.

[Read more…] about A Bad Year for Kansas’s Kobach and Newby

Kansas 0-3 in Voter ID Lawsuits

Election Law Society · January 23, 2017 ·

By: Norma Volkmer

Kansas Secretary of State, Kris Kobach, narrowly avoided contempt charges in September 2016 which would have been the cherry on top for those in opposition to Kansas’s proof-of-citizenship requirement. The requirement, which requires anyone registering to vote in Kansas provide proof of citizenship via one of thirteen documents, was enacted under the Secure and Fair Elections Act of 2011, and was enforced beginning in 2013.

[Read more…] about Kansas 0-3 in Voter ID Lawsuits

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