A new Supreme Court case could potentially hand Arizona to Donald Trump.
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Republicans ask the Supreme Court to disenfranchise thousands of swing state voters
A new Supreme Court case could potentially hand Arizona to Donald Trump.
by
Ian Millhiser
Aug 19, 2024, 5:10 PM EDT
Former President Donald Trump shakes hands with Justice Brett Kavanaugh, in 2019. Mandel Ngan/AFP
Ian Millhiser is a senior correspondent at Vox, where he focuses on the Supreme Court, the Constitution, and the decline of liberal democracy in the United States. He received a JD from Duke University and is the author of two books on the Supreme Court.
The Republican Party wants the Supreme Court to weigh in on a
nauseatingly complicated voting rights case, which could potentially disenfranchise thousands of presidential voters in the swing state of Arizona. The case is known as
Republican National Committee v. Mi Familia Vota.
The case involves an astoundingly convoluted system Arizona uses to register certain voters — one that emerged from 20 years of conflicting state and federal laws, plus seemingly endless litigation over those laws. Among other things, Republicans claim that several thousand Arizona voters should be allowed to vote only in congressional elections, and that they are barred from voting in state and local elections or voting for the president.
In 2004, Arizona enacted a law which requires new voters to
provide documentary proof of citizenship (such as a passport or a birth certificate) when registering to vote in the state. This state law, however, conflicts with a federal law known as the National Voter Registration Act (NVRA), which requires states to register voters who submit a standardized federal registration form.
That form requires Arizona voters to swear, under penalty of perjury, that they are in fact citizens. But it does not require them to submit other proof of citizenship.
The Supreme Court confronted this conflict in
Arizona v. Inter Tribal Council of Arizona (2013), and largely resolved it in favor of the NVRA.
Inter Tribal held that the state must allow voters to register using the federal form, but it also suggested that Congress’s power to require states to register voters is limited to “federal elections.”
Thus, in response to
Inter Tribal, Arizona refused to fully register voters who submitted the federal form without providing proof of citizenship. Since
Inter Tribal, these voters have been allowed to vote in federal elections (for Congress and the president), but not in state and local races in Arizona. According to an expert who testified in the
RNC case, “approximately one-third of a [percent] of non-Hispanic White voters [in Arizona] are Federal-Only Voters, while a little more than
two-thirds of a percent of minority voters are Federal-Only Voters.”
This racial disparity likely explains why the Republican Party is now asking the Supreme Court to further restrict this small percentage of Arizona voters.
2020 exit polls showed Republican Donald Trump winning white voters in Arizona, but losing the state as a whole due to President Joe Biden’s strong performance with Latinos. Biden’s
margin of victory in Arizona in 2020 was about three-tenths of a percent, and even a tiny shift in the state’s population of eligible voters could tip the balance.
The
RNC case, which is now before the Supreme Court, concerns a 2022 Arizona law which would impose three new restrictions on these federal-only Arizona voters. It bars them from voting by mail, and from voting for president altogether — thus limiting them to voting only in congressional elections. Additionally, the 2022 law requires the state to reject any new voter registration submitted using the state’s own form if that registration doesn’t include proof of citizenship — even though the state is still required to register that individual as a federal-only voter if the registrant submits the federal form.
The 2022 law, however, has never taken effect. This is true in part because several key statewide offices are controlled by Democrats, but also because the courts have taken a skeptical view of the law. In total, seven judges have heard the
RNC case at some point in its journey through the federal judiciary, and
none of them voted in favor of the provisions preventing federal-only voters from voting by mail or for president.
Meanwhile, these lower-court judges split on the restrictions governing new registrants, although this is probably the least consequential of the 2022 law’s three restrictions. The last panel of judges to weigh in on that provision voted 2-1 to block it, at least for now.
And so now it is up to the Supreme Court to decide whether to make this needlessly complicated morass even more complicated, potentially preventing thousands of Americans from voting for president in a key swing state.
So, how strong are the Republican Party’s arguments?
Let’s get one disclaimer out of the way: We are talking about the same Supreme Court that recently held, despite no language in the Constitution that supports this position, that former President Donald Trump has
broad immunity from prosecution for crimes he committed while he was in office. The Court’s Republican supermajority
does not always follow the law, especially when the law cuts against the Republican Party’s preferred outcome. So, in a case where the GOP is asking these justices to make it easier for Republicans to win a presidential election, there is always some risk that the Court’s Republican majority will play ball.
That said, they’ll really have to stretch if they want to hand the GOP a victory in this case.
The trial court that heard the
RNC case concluded that the two most severe restrictions in the 2022 law — the prohibitions against voting by mail and voting for president — violate the NVRA, the
same law at issue in Inter Tribal. To justify its attempt to lock these voters out of the presidential election, the GOP points to a provision of the Constitution that gives Congress broad power to
shape the “Times, Places, and Manner” for choosing members of Congress, but that doesn’t give Congress the same power over presidential elections.
The Court has long held, however, that “the power of Congress to protect the election of President and Vice President from corruption” is “clear,” and that “the choice of means to that end presents a question
primarily addressed to the judgment of Congress.” So it is well-established that Congress can regulate presidential elections. This explains why every judge who considered the GOP’s argument, several of whom were appointed by Trump, voted to reject it.
There’s also another reason why the Supreme Court should not reinstate these two provisions. In
Purcell v. Gonzales (2006), the Court warned that “federal courts ordinarily should not alter state election rules in the period close to an election.” While the Court has never stated precisely when the “period close to an election” begins, its Republican majority has read
Purcell quite aggressively in the past. Justice Brett Kavanaugh has even suggested that the
Purcell window opens up
more than nine months before a general election.
It’s now mid-to-late August. The 2024 election is just over two months away. And yet the GOP is asking the Supreme Court to alter Arizona’s election rules to impose new voting restrictions that have not previously taken effect and were enjoined by a federal trial court in 2023.
Purcell should prevent the Court from giving the GOP what it wants in this case — at least until after the election happens.
The RNC’s arguments in favor of the restrictions on new voter registrations are a little stronger. In 2018, Arizona settled a lawsuit. As part of that settlement, it agreed to register federal-only voters who submit the state’s own registration form rather than the federal form. The GOP now argues that the state legislature’s decision to enact a new law in 2022
overrides the 2018 lawsuit settlement.
This is a plausible argument, but the RNC’s request to reinstate this voter registration restriction during the 2024 election probably also runs afoul of
Purcell. Again,
Purcell held that courts should not alter a state’s election rules too close to an election, and Republicans are asking the Supreme Court to alter Arizona’s election rules in the final stretch before voters start casting ballots for president.
In any event, the
RNC case will likely offer a window into whether this Court’s Republican majority will behave as honest brokers during the 2024 race. In past election cycles, Republican justices
wielded Purcell very aggressively to block lower-court decisions expanding voting rights — often in cases where Democrats supported the lower court’s approach.
It’s only fair that the Court read
Purcell just as aggressively now that Republicans would benefit from a looser application of that decision.
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