A new Supreme Court case could disenfranchise thousands of voters in swing states

The Republican Party wants the Supreme Court to consider a nauseatingly complicated voting rights case that could potentially disenfranchise thousands of presidential voters in the swing state of Arizona. The case is known as Republican National Committee vs. Mi Familia Vota.

The case concerns an astonishingly complicated system that Arizona uses to register certain voters – a system that has been born out of 20 years of conflicting state and federal laws and seemingly endless litigation over those laws. Among other things, Republicans claim that several thousand Arizona voters are only allowed to vote in congressional elections and are barred from participating in state and local elections and from voting for president.

In 2004, Arizona enacted a law requiring new voters to present proof of citizenship (such as a passport or birth certificate) when registering to vote in the state. However, this state law conflicts with a federal law called the National Voter Registration Act (NVRA), which requires states to register voters who submit a standardized federal registration form.

On this form, Arizona voters must swear, under penalty of perjury, that they are indeed citizens, but they are not required to provide any other proof of citizenship.

The Supreme Court dealt with this conflict in Arizona v. Inter-Tribal Council of Arizona (2013) and largely resolved it in favor of the NVRA. Inter-Tribes It ruled that the state must allow voters to register using the federal form, but it also noted that Congress's authority to require states to register voters was limited to “federal elections.”

In response to Inter-TribesArizona refused to fully register voters who filed the federal form without proof of their citizenship. Inter-TribesThese voters are allowed to vote in federal elections (for Congress and President), but not in state and local elections in Arizona. According to an expert who has worked in the RNC case, “about a third of a [percent] of non-Hispanic white voters [in Arizona] are purely federal voters, while just over two-thirds of one percent of minority voters are purely federal 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. Post-election polls in 2020 showed that Republican Donald Trump won over white voters in Arizona but lost the state overall as President Joe Biden did well among Latinos. Biden's lead in Arizona in 2020 was about three-tenths of a percent, and even a tiny shift in the number of eligible voters in the state could make all the difference.

The RNC The case now before the Supreme Court concerns a 2022 Arizona law that would impose three new restrictions on these federal-only voters in Arizona. It bans them from voting by mail and from voting in the presidential election altogether—thus limiting them to voting in congressional elections. In addition, the 2022 law requires the state to reject any new voter registration filed using the state's own form if that registration does not include proof of citizenship—though the state must still register that person as a federal-only voter if the registrant files the federal form.

However, the 2022 law never went into effect. This is partly because several important state-level offices are controlled by Democrats, but also because the courts viewed the law with skepticism. In total, seven judges heard the case. RNC The case was examined as it worked its way through the federal courts, and none of them voted in favor of the provisions that prevent federal-only voters from voting by mail or voting for president.

Meanwhile, lower court judges are divided over the limits on new registrations, although this is likely the least consequential of the three restrictions in the 2022 law. The last panel of judges to consider this provision voted 2-1 to block it, at least for now.

And now it's up to the Supreme Court to decide whether to complicate this needlessly complicated mess even more, potentially preventing thousands of Americans in a key swing state from voting for the president.

Let's be clear about one caveat: We're talking about the same Supreme Court that recently ruled that former President Donald Trump enjoys broad immunity from prosecution for crimes he committed while in office, even though the Constitution contains no language supporting that position. The Court's Republican supermajority doesn't always follow the law, especially when the law runs counter to the outcome the Republican Party wants. So in a case where Republicans ask those justices to make it easier for Republicans to win a presidential election, there's always some risk that the Court's Republican majority will play along.

Still, they will have to work really hard if they want to give the Republican Party a victory in this case.

The Court of First Instance, which RNC The case concluded that the two most serious restrictions of the 2022 law – the ban on mail-in voting and the election of the president – ​​violate the NVRA, the same law that was at issue in Inter-TribesTo justify their attempt to exclude these electors from the presidential election, Republicans point to a provision in the Constitution that gives Congress broad power to determine the “time, place and manner” of electing members of Congress, but does not give Congress the same power over presidential elections.

But the Court has long held that “the power of Congress to protect the election of the President and Vice President from corruption” is “clear” and that “the choice of means to that end is a question primarily subject to the judgment of Congress.” So it is widely accepted that Congress can regulate presidential elections. This explains why all the justices who considered the Republicans' argument – several of them were appointed by Trump – rejected it.

There is another reason why the Supreme Court should not reinstate these two provisions. Purcell vs Gonzales (2006), the Court warned that “federal courts should generally not change state election rules in the period preceding an election.” Although the Court has never specified exactly when the “period preceding an election” begins, its Republican majority has read Purcell quite aggressive in the past. Judge Brett Kavanaugh has even suggested that the Purcell The window of opportunity opens more than nine months before the parliamentary elections.

It is now mid- to late August. The 2024 election is just over two months away. And yet the Republican Party is asking the Supreme Court to change Arizona's election rules to enforce new voting restrictions that have not yet gone into effect and have been blocked by a federal court in 2023. Purcell should prevent the court from giving the Republican Party what it wants in this case – at least until after the election.

The RNC's arguments for the restrictions on new voter registration are somewhat stronger. In 2018, Arizona settled a legal dispute with the state. As part of that settlement, the state agreed to only register federal voters who submit the state registration form rather than the federal form. Republicans now argue that the state legislature's decision to pass a new law in 2022 overrides the settlement from the 2018 litigation.

This is a plausible argument, but the RNC’s request to reinstate this voter registration restriction in the 2024 election also likely violates Purcell. Again, Purcell Republicans have ruled that courts should not change a state's voting rules too close to an election. And Republicans are asking the Supreme Court to change Arizona's voting rules in the home stretch before voters begin voting for president.

In any case RNC The case will likely provide insight into whether the court's Republican majority will behave as honest brokers during the 2024 election cycle. In previous election cycles, Republican judges Purcell very aggressively to block lower court decisions expanding voting rights – often in cases where Democrats supported the lower court’s approach.

It is only fair that the court Purcell just as aggressive, as Republicans would benefit from a more relaxed application of this decision.