Arizona voters face more scrutiny of their citizenship and residency, after judge upholds 2022 laws

Arizona election officials will begin frequently checking voters’ U.S. citizenship and requiring voters to submit proof of residency when they register, under new laws upheld by a federal judge last week.

Under those laws, if the citizenship checks show that someone has an ID typically given to someone who is not a U.S. citizen, they will be barred from registering to vote, or will be kicked off the rolls. And if new registrants don’t provide documents proving they live in the state, they won’t be able to vote in state and local elections.

While voting by non-citizens in Arizona rarely happens, U.S. District Judge Susan Bolton concluded in her ruling, the new laws could help prevent it, and they wouldn’t pose an overly burdensome barrier to voting.

The investigations are likely to disproportionately involve voters of lower socioeconomic status and naturalized citizens, Bolton found, but she said they aren’t inherently discriminatory. A Votebeat analysis found the laws are also likely to disproportionately affect younger voters and voters who live on college campuses, who often register to vote without providing documents proving residency or citizenship.

Bolton’s ruling comes after long and complex litigation over two laws, HB2243 and HB2492, enacted by Republican state lawmakers and Republican Gov. Doug Ducey in 2022, that supporters said would help keep non-citizens from voting. Several voting rights groups, including those representing Hispanic, Native American, and Asian American voters, sued, alleging that the laws were discriminatory and violated federal voting rights laws.

Bolton’s ruling follows a preliminary ruling in September and a 10-day trial in December, Taken together, her two rulings blocked the most restrictive elements of the new laws. For that reason, the Republican-controlled state Senate is likely to appeal Bolton’s decision, according to a Senate spokesperson. It’s unclear whether voting rights groups will, too.

Most significantly, Bolton’s September ruling blocked any provision that further limits voting for those who haven’t provided documented proof of citizenship, including provisions that would have prohibited them from voting for president or by mail.

With last week’s ruling, the judge also blocked a provision that would have required voters to provide their birthplace when they register to vote, explaining that the information isn’t a reliable or useful way to determine someone’s voting eligibility. And she will not allow counties to investigate citizenship on the basis that a recorder had “reason to believe” that the voter was not a citizen, finding that the way the law is written would discriminate against naturalized citizens.

Secretary of State Adrian Fontes celebrated Bolton’s ruling last week, saying in a statement that it “dismantles a blatant attempt to suppress the votes of Arizona’s diverse electorate.”

Bolton’s rulings preserve the state’s unique split voting system, which limits voters to voting in federal elections if they haven’t provided documented proof of citizenship. That’s because federal law doesn’t require this documentation, but state law does. There are about 32,000 “federal only” voters in the state who haven’t provided documented proof of citizenship.

It’s unclear when election officials will begin using the new methods outlined in the law to verify residency and citizenship, and when the monthly citizenship checks will begin. Fontes wrote in a new Elections Procedures Manual finalized in December that any program to systematically cancel registration records, such as the new monthly checks, should occur “at least 90 days before a primary or general election.”

Fontes’ office did not respond when asked when the new procedures would begin.

Ruling finds voter citizenship checks are not discriminatory

Bolton wrote in her ruling that it is not illegal or discriminatory for the state to require county recorders to conduct initial and monthly investigations of voters’ U.S. citizenship status and cancel registrations of voters who they confirm are not citizens.

While recorders already examine citizenship records when someone registers to vote — using records from the state Motor Vehicle Division and a federal immigration database, the USCIS Systematic Alien Verification for Entitlements System — the new law requires them to also use other databases to do these checks. If they see that the person has an ID that is issued only to non-citizens, such as a USCIS number, they must not process their registration. They also are required to send a list of these voters to the state attorney general for investigation.

The voting rights groups that sued the state told Bolton that these rules would require officials to rely on faulty or old databases that would likely incorrectly flag citizens, especially newly naturalized ones, resulting in the disenfranchisement of eligible voters and an uneven system around the state.

Bolton in her ruling said that the databases are generally reliable, if not fully up to date.

Fontes issues rules for recorders as new laws go into effect

Fontes’ new Elections Procedures Manual outlined rules about the new laws, including instructions apparently meant to protect eligible voters from being removed from the rolls as citizenship checks happen.

For example, he told county recorders they have to notify the voter that their registration will be rejected, and give them until the next election to send in documents correcting the record.

He also told recorders that they have no obligation to use other databases named in the new laws, such as the Social Security Administration database, because they don’t have access to them currently, and the new laws only require them to do so “when practicable.”

The Arizona Republican Party and the Republican National Committee have challenged that instruction in a sweeping lawsuit, which claims Fontes’ manual conflicts with state law and should be thrown out.

The new monthly investigations will work like this: The Motor Vehicle Division will send the Secretary of State’s Office a monthly list of anyone who updates their address, moves out of state, or obtains a state ID given to non-citizens. The secretary of state will sort the list by county and send it to county recorders, who must use it and other databases to identify ineligible voters on their rolls. Voters will have their registration canceled only if the check shows that they have a non-citizen ID. If recorders just can’t find documents proving citizenship, those voters will be barred from state and local elections, but remain on the rolls for federal elections only.

The rules still leave open the possibility that an eligible voter could be restricted from voting: Just because someone has a non-citizen ID doesn’t mean they are not citizens. A naturalized citizen, for example, might have not yet updated their records with the state.

Michael McDonald, a political science professor at the University of Florida, analyzed Arizona’s voter rolls and found that 6,084 full-ballot voters who have already provided documented proof of citizenship nonetheless also have a foreign identification card that would cause them to be flagged as non-citizens in the MVD database. These are naturalized citizens who appear to not have updated their state ID since becoming citizens, McDonald found.

He also said the records show that 65 federal-only voters possess a foreign identification card or number.

Under the new laws, these voters would be immediately flagged for county recorders.

The new law also requires counties to immediately remove voters from the rolls when they tell the state through a jury-duty questionnaire that they are non-citizens.

Fontes in his manual told county recorders that the lists sent from the secretary of state and the juror questionnaires shouldn’t be taken as “confirmation” of non-citizenship. Recorders should still independently confirm this in other ways, he wrote, such as checking whether the voter has already provided documented proof of citizenship, checking other “relevant government databases,” and in some cases, contacting the registrant directly.

The Republican lawsuit challenging the manual claims that these instructions regarding jury notifications conflict with state law.

Fontes also used the manual to clarify that voters who registered in 2004 before the state law requiring documented proof of citizenship took effect are exempt from providing the documentation.

Advocates for Native Americans, college students aired concerns

Bolton said she heard concerns from advocates for Native Americans that the new requirement for document proof of residency could disenfranchise residents of reservations where addresses may not have conventional street names or building numbers.

But Fontes clarified in his manual that the law doesn’t require tribal members or other Arizona residents to have a standard street address.

Advocates for student voters, meanwhile, told Bolton that the proof-of-residency requirement would disenfranchise Arizona college students from out of state — who aren’t likely to have an in-state ID — by prohibiting them from voting in state and local elections.

“That’s the problem,” Kyle Nitschke, co executive director of the Arizona Students’ Association told Bolton in December. “They don’t have that proof of residency. They don’t have an in-state driver’s license. They don’t have a utility bill that matches with their dorm address … They really don’t have proof that they are living at the dorm they are living at a lot of the time.”

Bolton found that the state’s requirements for proof of residency and citizenship are not overly burdensome.