The 9th U.S. Circuit Court of Appeals found the Arizona State Legislature may have acted with “discriminatory intent” when it passed a pair of 2022 laws meant to prevent voter fraud. 

The court upheld district court findings that the laws requiring further proof of citizenship for federal voters, proof of residence for state voters, and systemic checks and registration cancellations given a “reason to believe” someone is not a citizen, were illegal. 

But in conflict with the district court, the appellate court found persuasive evidence that the Legislature enacted the two laws with discriminatory purpose and remanded the issue to the district court. 

“Although some provisions of the Voting Laws are legitimate and lawful prerequisites to voting, many of the challenged provisions are unlawful measures of voter suppression,” Judge Ronald Gould wrote. 

The Legislature passed and former Gov. Doug Ducey signed H.B. 2243 and H.B. 2492, which collectively enacted provisions to prevent non-citizens from voting in elections. 

Under the legislation, federal-only voters who failed to provide proof of citizenship were barred from voting by mail or in presidential elections. State voter registration applicants were required to check a box attesting to citizenship, and provide a birthplace and documentary proof of residency. 

Further, the laws required county recorders to conduct periodic citizenship checks and cancel any registrations for voters whom recorders had a “reason to believe” were not citizens. 

After the two laws were passed, eight lawsuits followed, eventually consolidating into one legal challenge. U.S. District Court of Arizona Judge Susan Bolton weighed in first in September 2023 and again in March 2024, with her judgment made final in May. 

In sum, she found sections of the National Voting Rights Act and the Civil Rights Act blocked portions of the laws, and barred the state from requiring state voters to provide birthplace and federal-only voters to provide proof of citizenship to vote by mail and in the presidential election.

She further blocked the state from rejecting state forms without proof of citizenship and proof of residency without registering the voter as federal-only, from mandating registration denial if a voter fails to check a box attesting to citizenship, and from directing county recorders to review and cancel registrations based on the “reason to believe” standard. 

Though Bolton enjoined large swaths of the laws, she did not find a discriminatory intent. 

And in a Tuesday ruling, Judges Ronald Gould and Kim McLane Wardlaw went a step further in the majority opinion by finding the district court held too high of an evidentiary bar in its finding of no discriminatory intent and remanded the issue. 

The panel found the district court should not have taken the context surrounding the bill, including the charged political climate following claims of voter fraud in 2020, language used by the Arizona Free Enterprise Club, when lobbying material and the quick passage of the bills in the 2022 session, separately and discretely, but should have instead sewn them together to assemble a picture of discrimination. 

“The contentious political climate arising from claims of illegal voting may seem innocuous standing alone. So might the Free Enterprise Club’s use of the term “illegals” in lobbying materials, if standing alone. So might H.B. 2243’s hasty passage departing from legislative norms, if standing alone,” Gould said. “But, viewed in context, these discrete pieces of evidence take on a different meaning and support an inference of discriminatory intent. Factfinders considering whether a law was passed with discriminatory intent must analyze the totality of the circumstances.” 

In dissent, Judge Patrick Bumatay claimed the laws should not have been rejected wholesale. 

“When courts are forced to enter the political realm—as challenges to voting laws require—we must be our most deliberate, careful, and thoughtful. Our robes are not blue or red but black. Sweeping rulings setting aside a State’s laws don’t help,” Bumatay wrote. “While some parts of H.B. 2492 and H.B. 2243 may violate federal law, in no way must they be completely invalidated.” 

He agreed with his colleagues in finding the “reason to believe” provision and the citizenship checkbox requirement to be contrary to federal law, but split with the opinion on every other front. 

“Except as noted above, we should have vacated this sweeping injunction,” Bumatay wrote. 

Bumatay said the finding of discriminatory intent was based “on the weakest of evidence” and said the “majority views any voter-verification requirement as discriminatory voter suppression.’ 

He argued instead the evidence was circumstantial and failed to constitute wholesale legislative bias. 

“The district court did view the evidence in context—and concluded that it was unpersuasive,” Bumatay wrote. 

In a post on X, Senate President Warren Petersen said the legislature would be appealing the ruling to the United States Supreme Court.