John, 

Good news! The U.S. Court of Appeals for the Ninth Circuit recently issued a powerful ruling in one of our voting rights cases. 

The ruling protects Arizona citizens from anti-voter provisions in two 2022 Arizona state laws, H.B. 2492 and H.B. 2243, and rejects the district court’s reliance on an impracticably high standard of proof for assessing whether the laws intentionally discriminated against naturalized citizens and other marginalized groups.

On appeal, the Ninth Circuit correctly affirmed the trial court’s findings that H.B. 2492 and H.B. 2243 violated the National Voter Registration Act of 1993 and the Civil Rights Act of 1964 by (1) prohibiting voters who only register to vote in federal elections (federal-only voters) from voting by mail or in the presidential election; (2) refusing to register federal-only voters unless they provide documentary proof of residence and citizenship, despite the fact that these voters are already required to attest to residency and citizenship; (3) requiring counties to carry out systemic voter roll purges targeting only naturalized citizens and within 90 days of elections; and (4) refusing to register voters who do not provide information immaterial to their registration application or duplicative of information already provided—specifically, by requiring voters who provide documentary proof of citizenship to also check a box confirming their citizenship; and by requiring voters to provide their birthplace.

The plaintiffs also asserted that the laws were passed in order to intentionally discriminate against voters of color. The trial court ruled against them, but only after imposing an improperly high evidentiary standard that exceeded the standards previously set by the Supreme Court and the Ninth Circuit. The Ninth Circuit corrected the court’s error, emphasizing that discriminatory purpose may be “inferred from the totality of the relevant facts,” and that courts must look comprehensively at the evidence presented by the plaintiffs—including, in this case, Arizona’s long history of discrimination; the fact that the legislature passed the laws via irregular procedures despite having no evidence of non-citizens voting; and the disparate impact that the laws had on minority voters and naturalized citizens. The Ninth Circuit has sent the case back to the trial court to reconsider the evidence using the correct standard of review.

The Arizona legislature passed these laws after the 2020 election saw unprecedented voter participation by Arizonians, and in the shadow of baseless, disproven rumors that non-citizens voted in the election. The Ninth Circuit noted that these claims were “apparently fanciful,” and that the legislature passed the laws despite looking for, but not finding, any evidence of voter fraud. The Ninth Circuit’s ruling protects voters from the arbitrary barriers that these laws erected to limit their ability to register and vote. It is a victory not only for Arizonans, but for all people who want to protect voters and the health of our democracy.

Free Speech For People and pro bono counsel Mayer Brown serve as co-counsel in this case with the Campaign Legal Center, the San Carlos Apache Tribe, and Barton Mendez Soto to represent the San Carlos Apache Tribe, Arizona Coalition for Change, Living United for Change in Arizona, the League of United Latin American Citizens, Arizona Students’ Association, and the Inter Tribal Council of Arizona.

We’ll keep fighting together to defend our democracy!

Onward,

Courtney Hostetler, Legal Director
Free Speech For People