Howard Fischer, Capitol Media Services//April 10, 2025//
Howard Fischer, Capitol Media Services//April 10, 2025//
The Trump administration is dropping its 2022 challenge to an Arizona law designed to require proof of citizenship to vote in federal races.
That doesn’t mean, however, that the state can start enforcing the law.
The move by the Department of Justice is in many ways no surprise. Since President Trump took office and put his own people in charge, the agency has been stepping away from litigation filed during the Biden administration to protect the rights of voters.
Senate President Warren Petersen cheered the action.
“A major win for election integrity and the rule of law!” the Gilbert Republican posted on his X, claiming credit for the move. “This follows my letter to the Department of Justice asking for them to back out of this misguided Biden lawsuit.”
But even Petersen conceded the case is not over, saying that House and Senate Republicans will continue to defend the 2022 law “against the special interest groups challenging it.”
That was echoed by Elisabeth Frost, an attorney at Elias Law Group who represents a variety of private organizations involved with voting rights.
“We are going to fight for Arizona voters whether Trump’s Department of Justice is with us or against us,” she said.
Hanging in the balance is whether close to 50,000 Arizonans will be able to vote in the next presidential race.
A 2004 voter-approved initiative requires proof of citizenship to register to vote.
However, the National Voter Registration Act also includes a provision allowing people to use a special federally designed form to vote in federal elections. That form mandates that applicants sign a sworn statement avowing, under penalty of perjury, that they are, in fact, citizens.
In 2020, however, Biden outpolled Trump in Arizona by 10,457 votes. So two years later Republican lawmakers, with the blessing of Republican Gov. Doug Ducey, approved a measure to say that form can’t be used to vote for president in 2024 and beyond unless there also is citizenship proof.
But before that could happen, U.S. District Court Judge Susan Bolton struck down that requirement as illegal and discriminatory.
She also voided another provision that said anyone who uses a federal form cannot vote by mail as well as a requirement directing county recorders to conduct checks of voters they have “reason to believe” are not citizens.
That case continues to work its way through the court system, with the latest ruling just a month ago by the 9th Circuit Court of Appeals upholding the essence of what Bolton concluded. In fact, the appellate judges told Bolton to take another look to determine not just whether the legislators acted illegally — what she already concluded — but whether they acted with an intent to discriminate.
Now the Department of Justice told Bolton it wants out.
“The United States no longer seeks to press its claims in this case,” wrote Daniel Freeman, an attorney with the Civil Rights Division. He also wants Bolton’s earlier judgment in favor of the federal government dismissed.
It remains unclear whether the decision of the Trump administration to step aside now — after there have been several rulings — will aid the state in its continued efforts to block what are known as “federal only” voters from casting a ballot in 2028.
Some of this depends on what happens now that the case is back before Bolton to determine if lawmakers, in approving the law, acted with “discriminatory intent.”
A finding of intentional discrimination by itself is significant, and not just because of what it says about the GOP lawmakers who approved the plan and their allies like the Free Enterprise Club that pushed it.
It also would make it harder for legislative leaders to argue when the case goes to the Supreme Court — where it is virtually certain to head after the latest round of evidence and hearings — that the restrictions were based solely on their belief that they were necessary to prevent voter fraud. This would open the door to findings that the state violated other provisions of the Voting Rights Act.
Lawmakers may have an uphill fight.
In sending the case back to Bolton, the Court of Appeals told her that she needs to look beyond whether the GOP legislators who pushed the measure acted sincerely in their belief that non-citizens were voting.
The appellate judges said the test is whether lawmakers actually had such evidence. And to this point, they said, the Legislature has failed to produce any such evidence.
Bolton has not yet set a date for a hearing on what the appellate judges sent back to her — or even whether to grant the request by the Department of Justice to back out of the case.
All this, however, could become moot.
The U.S. House this week approved the Safeguard American Voter Eligibility Act that would require proof of citizenship to vote in federal elections along with a provision to require states to regularly purge their voter rolls.
A similar measure was killed last year in the Democratic-controlled Senate. Republicans now are in control, but getting the measure to Trump would require them to deal with a possible Democratic filibuster.
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