The false notion of noncitizens voting in large numbers in federal elections has emerged as a faultline in U.S. politics. While an explosion of new legislation and lawsuits across the country seek to combat the purported concern, despite a lack of evidence that it is a meaningful problem in U.S. elections, nowhere has that trend been as complicated – and revealing – as in Arizona.
For the past two years, Arizona’s Republican Party and its legislative leaders have passed and fought to enforce new voter ID laws, requiring documentary proof of U.S. citizenship, and forbidding those who do not provide such proof from engaging in certain methods of voting. Combined, the laws threatened to invalidate more than 40,000 voter registrations in the state.
The Arizona Republican Party and their legislative leaders – House of Representatives Speaker Ben Toma and Senate President Warren Petersen – have defended the constitutionality of those laws in federal court.
On Sept. 17, Maricopa County Recorder Stephen Richer, also a Republican, discovered that a glitch in Arizona’s driver’s license database caused nearly 100,000 registered voters not to meet the proof of citizenship requirements under the state’s recently revised election laws. Richer filed an emergency petition to the Arizona Supreme Court seeking to declare them ineligible to vote in state elections. But the next day, Toma and Peterson suddenly opposed the disenfranchisement. That was after it became clear that mostly Republican voters would be affected.
Toma and Petersen’s stance is unusual because for the past two years they have defended, and continue to defend, voter ID laws when the impact of invalidated voter registrations, while unknown, likely involves traditionally Democratic constituencies such as students and members of indigenous communities. For its part, the Arizona Republican Party submitted a legal brief opposing Richer’s efforts to enforce the ID laws and explicitly recognized that their constituents “would be disproportionately affected” by the mass disenfranchisement from the database glitch. The state Republicans’ sudden reversal caught little public attention outside the local press, with the Arizona Republic first running the story. Now, Just Security obtained the never-before-published data showing the political affiliations of the registered voters impacted by the glitch.
On Sept. 20, the Arizona Supreme Court ruled that the 97,928 voters believed to have been affected can in fact cast ballots in the upcoming state and federal elections, but federal litigation remains ongoing over whether a separate group of 41,128 registered voters impacted by the voter ID laws proof of citizenship requirements can cast ballots in state elections. Recent legal victories by Arizona’s Democratic Secretary of State Adrian Fontes have ensured, for now, that all of these Arizonans will be able to vote in the upcoming presidential election.
For Fontes, state Republicans tipped their hands.
“In my effort to affirm nearly 100,000 Arizonans who hadn’t yet provided citizenship documentation into fully registered voters, the Republican Party and state legislative leaders joined the initiative,” Fontes told Just Security in an email statement. “Their involvement was not out of concern for non-citizen voting—which they know isn’t an issue—but because more Republicans would have been affected, potentially altering legislative control and impacting certain initiatives. This was about political self-preservation. At this point, Arizona Republicans can no longer credibly claim that their concern is non-citizen voting.”
Arizona’s example could upend the common wisdom about who voter ID laws disenfranchise, and how the GOP’s nationwide clampdown on purported noncitizen voting – in addition to operating on a faulty premise and sowing baseless doubt over U.S. elections – may be self-defeating.
The Tangled History of Arizona Voter ID Laws
As a result of its constantly shifting legal landscape, Arizona currently has two types of registered voters: “federal-only” voters and those who can cast a “full ballot,” which also includes state elections. How the state got that way requires unpacking decades of legal history.
In 1993, during the Bill Clinton presidency, Congress passed the National Voter Registration Act (NVRA), which aimed to standardize eligibility guidelines across the country. Those standards required applicants to certify their citizenship under penalty of perjury, but the traditionally Republican border state has sought to ratchet up those standards ever since. In October 1996, Arizona required drivers to provide proof of citizenship to obtain a license. Nearly a decade later, in 2004, the state enacted another voter ID law Proposition 200, until the Supreme Court overturned it in 2013. In his majority opinion in Arizona v. Inter Tribal Council of Arizona, Inc., former conservative Supreme Court Justice Antonin Scalia ruled that the proposition violated the NVRA.
Undeterred by the Supreme Court’s mandate, Arizona’s top Republican leaders in the Arizona legislature – Toma and Petersen – supported and ultimately passed H.B. 2492 and H.B. 2243 in 2022, imposing stricter proof of citizenship requirements for state and federal elections than those in the NVRA. The advocacy group Mi Familia Vota quickly sued, arguing that Arizona’s new voting rules trampled upon Supreme Court precedent and could unconstitutionally disenfranchise 41,128 registered voters.
This past February, the federal judge hearing the Mi Familia Vota lawsuit blocked the controversial voter ID legislation, but on Aug. 22, the U.S. Supreme Court temporarily revived the portion of the law relating to voting requirements for state elections. The U.S. Supreme Court’s majority allowed voters who registered by affidavit under the NVRA to continue voting in federal elections, creating a new pool of “federal-only” voters who would be disenfranchised in state elections, if they could not meet the requirements of Arizona law. For now, the federal Mi Familia Vota litigation remains ongoing, in an appeal that remains pending before the Ninth Circuit Court of Appeals. Toma and Petersen intervened in that case in defense of Arizona’s new voter ID laws.
Then, on Sept. 17, Richer, the Maricopa County Recorder, told state’s highest court that a government database glitch may have disenfranchised Arizonans who got their licenses before October 1996. In an email attached to his lawsuit, Richer even informed Arizona’s Democratic Gov. Katie Hobbs and Fontes: “I know that the vast majority of these voters are United States citizens who can provide documented proof of citizenship.” Once the political affiliations of this group emerged, Toma and Petersen opposed disenfranchising these voters in state court, even as they continued to defend their voter ID laws in federal court. Their attorney Kory Langhofer, who previously represented the Trump campaign in 2020, did not respond to an email requesting comment.
The Shadow of the 2020 Election
In 2020, then-candidate Joe Biden won Arizona by a 10,457-vote margin, and until the data glitch emerged, common wisdom held that the recent voter ID legislation would disproportionately disenfranchise traditionally Democratic constituencies, including students and economically disadvantaged communities. The former voting bloc includes young people from out of state, and the latter may not be able to afford to obtain identification. Transgender voters – who, in Arizona, must provide proof of gender affirming surgery to change their IDs – were also believed to be at risk of having their registrations invalidated. That common wisdom may hold true – at least in state elections – for the Arizona voters potentially impacted in the Mi Familia Vota litigation, but the database glitch that nearly disenfranchised almost 100,000 Arizonans shows the prevailing logic is not so clear-cut.
Due to legal victories by Fontes, Arizona’s “federal-only” voters still have the right to vote in the presidential election. The Arizona Supreme Court decision has allowed the separate pool of “federal-only” voters affected by the driver’s license database to have access to a full ballot. Since the federal litigation remains unresolved, the remaining issue to be decided involves access to state ballots for the more than 40,000 voters.
Regardless of the outcome of the still-pending lawsuit, Arizona’s ongoing voter ID saga is a continuation of efforts in that state to call the legitimacy of the election results there into question – here, through the statistically low risk of noncitizen voting. In 2020, the panic involved “Sharpiegate,” the debunked conspiracy theory claiming that Maricopa County tabulation equipment invalidated the results of Trump supporters en masse because poll workers had conservative districts fill them out with Sharpie markers. The online disinformation meme went viral, inspiring a social media hashtag that sparked hundreds of voter complaints to the office of then-Arizona Attorney General Mark Brnovich and instigated large protests. On Nov. 4, 2020, just a day after Election Day, demonstrators, some of them armed and agitated in part by the false rumors, gathered outside the county’s elections department shouting, “Stop the steal!”
Then and now, the ensuing outrage over the phantom threat sparked legal battles, and the lawyer behind both of these cases was Langhofer. The first version of the Sharpiegate lawsuit collapsed shortly after landing in court, and the second one – which dropped the Sharpie allegations – fared no better. A state judge rejected the Trump campaign’s allegations of election-related irregularities, and Langhofer ultimately told the judge: “This is not a fraud case.” After both cases collapsed, the litigation became a barely remembered footnote to the nationwide upheaval that followed, fueled by election lies and culminating in the Jan. 6, 2021 attack on the U.S. Capitol.
‘The Big Lie of 2024’
With roughly 40 days until Election Day, Arizona Republicans – at least in one venue – appear to be retreating about the threat of noncitizen voting, but the same conspiracy theory has taken root across the country. The strategy has become so pervasive and widespread that Washington Post columnist Jen Rubin already dubbed it “The Big Lie of 2024.” Last month in Nevada, the Republican National Committee filed a lawsuit alleging that Democratic Secretary of State Francisco Aguilar Aguilar “fail[ed]” to purge thousands of noncitizens from voter rolls.
In that lawsuit, the RNC claimed to have found 6,136 active voter registrations that were “positive matches” to noncitizens registered with the DMV, but in states like Tennessee and Alabama, such estimates were revealed to have been caused by errors in the data. CNN found similar examples in states like Texas and Ohio.
In a remarkable turnaround, the recent developments in Arizona inspired a passionate legal brief by the state Republican Party about the dangers of disenfranchising thousands of people based on the government’s error.
“Each of the affected voters currently have the right of suffrage and have regularly exercised that right in state elections, many multiple times for decades,” the Arizona Republican Party’s attorney Andrew Gould wrote in a amicus brief, warning against any effort to interfere with “the free exercise of that right by an eleventh-hour demand for proof of citizenship.”
“In other words, U.S. citizen voters who have lived in Arizona for decades and consistently participated in state elections without issue are likely to show up at their polling place on November 5 only to learn that they have been disenfranchised by a state government clerical error of which they had no prior knowledge,” the brief states.
The Arizona Republican Party and its legislative leaders did not respond to emails requesting comment.