What to Make of the Confusing and (Mostly) Incorrect Federal Court Ruling on Arizona’s Proof of Citizenship Election Law

What to Make of the Confusing and (Mostly) Incorrect Federal Court Ruling on Arizona’s Proof of Citizenship Election Law

It is no secret that an overwhelming number of Americans believe that only U.S. citizens should be allowed to vote in our elections. It arguably is and ought to be the first and primary qualification to vote. But what good is that requirement if it isn’t verified? In other words, without proof of citizenship, we are relying on a simple stroke of a pen or pencil on a registration form, checking a small box attesting to citizenship.

That’s why in 2004 Arizona voters approved a measure to require proof of citizenship before registering to vote. But, in the 20 years since, that requirement has been whittled away and now there are tens of thousands of people voting in Arizona elections (often referred to as “Federal only” voters) without ever having provided evidence of their citizenship.

In response to this explosion of ‘Federal Only’ voters, the Arizona legislature passed two landmark bills, HB2492 and HB2243, to require proof of citizenship and regular, enhanced voter roll maintenance to ensure only eligible individuals are registering and voting in our elections.

What happened next shouldn’t surprise anyone that has watched the left fight every reasonable voter integrity measure around the country. As soon as both bills were signed into law, a dozen liberal organizations and the Biden Justice Department sued in federal court, claiming that the measures were unconstitutional, illegal, and (of course) racist.

The case was given to Bill Clinton appointed judge Susan Bolton, and after a year of litigation, she issued a confusing, disjointed two-part ruling that is destined for appeal. And while a few positives can be gleaned from the decision, the bad and ugly from the liberal opinion far outweighed the good.

The Bad

Bolton had already ruled against many of the provisions last September, including, most importantly, blocking Arizona from rejecting state voter registration forms not accompanied with proof of citizenship (even though the U.S. Supreme Court clearly stated that we could) and from preventing “Federal Only Voters” from voting in presidential elections and by mail.

In this new ruling, Bolton also ruled that the requirement that a registrant include their place of birth on their voter registration form (currently optional), which would have helped verify the citizenship status of voters, violates the materiality provision of the Civil Rights Act. In other words, although the U.S. Supreme Court just a decade ago said we are free to design our own form and request the information we determine is necessary, Bolton decided for us, preventing us from collecting critical information from registrants to verify citizenship status.

Residency might be second only to citizenship as a qualification to vote: you have to be a citizen, and you must live here to vote in our elections. Pretty basic. But Bolton also decided that requiring registrants using the state form to prove their residency violates the National Voter Registration Act, requiring them to be registered as Federal Only Voters.

The Ugly

After the liberal group plaintiffs tried to go on a fishing expedition last year, serving the Club with subpoenas to access years of our communications, Bolton spent six pages determining whether the laws were passed with discriminatory intent. Three of those pages were spent on the Club’s involvement in getting these bills passed, where she described us as a “conservative lobbying group” (without identifying the nonprofit plaintiffs likewise as “liberal lobbying groups”). Even worse, she wrote that our previous articles amounted to racial animosity. Her evidence? In some of them we argued the bills would help stop “illegals” from voting. And, according to Bolton, the word “illegals” is a “code word” that “may demonstrate discriminatory intent.”

Her evidence for that? The testimony of one individual, former state senator Martín Quezada, whose nomination by Hobbs to head the Registrar of Contractors was rejected by the Arizona Senate last year. That was enough for a federal judge, in a federal court order, to allege our advocacy for the security of elections was fueled, at least in part, with coded racist language.

This claim is even more absurd now given that just last week President Biden (whose DOJ is a lead plaintiff against these bills) used the “coded word” “illegals” during his State of the Union address to Congress. Would Judge Bolton say that President Biden was using “coded” racist language too?

The Good

Even though Bolton thinks our advocacy was rooted in racism, it wasn’t enough to find that the legislature acted with discriminatory intent, because we didn’t, and they didn’t. And that alone is a huge win as this case moves to an appeal, because it was the bulk of the argument from the “liberal lobbying” group plaintiffs.

Additionally, many of the voter list maintenance provisions were upheld, meaning Arizona counties will be checking the voter rolls against several databases regularly and removing those not eligible to vote in our elections. Individuals who obtain a driver’s license in another state, those who attest on a jury questionnaire that they are not a U.S. citizen or are not a resident, SAVE (the federal immigration database), and more, will begin to clean up our voter list.

Finally, before the case moved to trial, the RNC intervened, as did Senate President Warren Petersen and House Speaker Ben Toma on behalf of the legislature, allowing for an appeal all the way up to the U.S. Supreme Court if necessary to uphold these commonsense laws before the 2024 election. And we will stand with them as it does.

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Arizona Free Enterprise Club Responds to Judge Bolton’s Ruling on HB 2492 and HB 2243

Arizona Free Enterprise Club Responds to Judge Bolton’s Ruling on HB 2492 and HB 2243

PHOENIX, ARIZONA – Last week, federal Judge Susan R. Bolton ruled on a challenge to HB 2492 and HB 2243, which were passed by the Arizona Legislature and signed into law by then-Governor Doug Ducey in 2022. In her opinion, Judge Bolton highlighted the work of the Arizona Free Enterprise Club in helping to draft and lobby for these critical protections that ensure only eligible voters are registered and voting in our elections.

According to Judge Bolton, the State of Arizona “may not reject State form registrations that lack an individual’s state or country of birth, may not conduct SAVE checks on any registered voter whom county recorders have reason to believe are a non-citizen, [and] may not reject State form registrations that are not accompanied by documentary proof of residence.”

“Though Arizonans can take solace in the fact that an activist judge didn’t completely dismantle these reasonable and commonsense laws, we are extremely disappointed in her decision to strike down several lawful provisions that we expect will be upheld on appeal,” said Scot Mussi, President of the Arizona Free Enterprise Club. “Officials across all branches and jurisdictions of our government should be working to uphold the integrity of our laws and to ensure that the votes of American citizens are not canceled or compromised by even a single illegal vote.”

In her ruling, Judge Bolton wrote that her Court weighed the Free Enterprise Club’s role in authoring the law and our “coded appeals as some evidence of community animus.” Those “coded appeals,” per Judge Bolton, were the “disseminat[ion] [of] lobbying materials by email to Arizona legislators that described how the Voting Laws would prevent ‘illegals’ from voting in Arizona elections.” The opinion explained that “the use of ‘code words’ may demonstrate discriminatory intent, and the term ‘illegals’ can evince racial animus for members of the Latino community in Arizona.”

Mussi added, “It is outrageous that Judge Bolton would use an official court opinion to falsely accuse concerned and law-abiding American citizens of having racist intent in our efforts to pass legislation to strengthen election integrity in this state. This accusation is especially laughable when we consider the state of the open border, where millions of men, women, and children from more than 160 countries of origin have illegally crossed into America – many of whom are taking up residence and receiving benefits on the backs of hardworking taxpayers. It shouldn’t take a grassroots advocacy organization to point out the constitutional responsibility of a federal court, yet sadly, this is the present state of our nation.”

We expect the Legislature and other Defendants to quickly appeal this ruling, and we look forward to filing briefs in support.

We’re Suing Adrian Fontes for His Illegal Elections Procedures Manual

We’re Suing Adrian Fontes for His Illegal Elections Procedures Manual

If Adrian Fontes likes spending time in court, he’s going to have a fun time in 2024. In case you’ve lost count, Arizona’s Secretary of State has been sued three times over his Elections Procedures Manual (EPM) in just the last two weeks. That’s what happens when you produce one of the most radical EPMs in Arizona’s history.

At the end of January, Senate President Warren Petersen and House Speaker Ben Toma filed a lawsuit against Fontes over a variety of provisions in his EPM that violate or conflict with current election laws in our state. But the party was just getting started.

Last week, the Arizona Republican Party, the Republican National Committee, and the Yavapai County GOP also sued Fontes for his blatant attempt to rewrite election law through his EPM. And on the same day, we filed our own lawsuit against Fontes over the promulgation of certain unlawful rules set forth in his EPM.

The reality is that, in his role as Secretary of State, Adrian Fontes is supposed to provide an EPM that gives impartial direction to county recorders to ensure uniform and correct implementation of election law. Instead, he prescribed certain rules without the power to do so and moved forward with an EPM that contains several “rules” that are unconstitutional.

The EPM Places Protected Political Speech at Risk of Criminal Prosecution

Several rules in Fontes’ EPM criminalize activity that is protected under the First Amendment—creating an unconstitutional chilling effect on protected political speech. One portion of the EPM states that the “County Recorder or officer in charge of elections may restrict activities that interfere with the ability of voters and/or staff to access the ballot drop-off locations free from obstruction or harassment.”

To the average person, that probably seems reasonable, until you realize that according to the EPM, voter intimidation or harassment includes:

    • Staying within 75 feet of a ballot drop box to simply monitor individuals who are delivering ballots.
    • Following individuals delivering ballots to the drop box.
    • Speaking to an individual who is returning ballots to a drop box and is within 75 feet of that drop box.

Monitoring drop boxes? Speaking to people? How can any of this be considered voter intimidation or harassment? But the EPM isn’t done yet. It also bans photographing or videotaping at election sites! But these activities—watching drop boxes, speaking to people at election sites, and photographing activity at election sites—all constitute forms of speech and are protected under the First Amendment.

The EPM Requires Arizona Political Parties to Open Their Primaries to Federal Only Voters

If deliberate violations of the First Amendment aren’t bad enough, Fontes’ EPM contradicts statutory requirements and exceeds statutory authority by opening the Presidential Preference Election to federal only voters. Arizona law is clear that any person who has registered to vote but has not provided acceptable evidence of citizenship is not eligible to vote in presidential elections. That certainly includes the Presidential Preference Election. But as you might expect, Fontes fails to cite anything that gives him the authority to establish such a provision. Instead, he is bypassing Arizona’s stricter voter registration requirements to essentially create a new law out of whole cloth.

If the illegal provisions in this manual are allowed to stand, the integrity and transparency of Arizona’s elections would continue to dissipate at the hands of leftwing ideologues. That’s exactly why the Free Enterprise Club, in collaboration with our friends at the America First Policy Institute and Grand Canyon Legal Center, filed this critical lawsuit. The people of Arizona deserve free, fair, transparent, and lawful elections. Now, it’s up to the courts to see through Fontes’ agenda and force him to adhere to state law.

Help Protect Freedom in Arizona by Joining Our Grassroots Network

Arizona needs to have a unified voice promoting economic freedom and prosperity, and the Free Enterprise Club is committed to making that happen. But we can’t do it alone. We need YOU!

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Free Enterprise Club Files Lawsuit Against Adrian Fontes for His Illegal Elections Procedures Manual

Free Enterprise Club Files Lawsuit Against Adrian Fontes for His Illegal Elections Procedures Manual

PHOENIX, ARIZONA –The Arizona Free Enterprise Club filed a lawsuit against Secretary of State Adrian Fontes over the promulgation of certain unlawful rules set forth in the latest Elections Procedures Manual (EPM) in December 2023. The legal challenge was filed in the Superior Court of the State of Arizona for the County of Maricopa.

“Secretary Fontes has produced one of the most radical elections procedures manuals in our state’s history,” said Scot Mussi, President of the Arizona Free Enterprise Club. “If the illegal provisions of this manual are allowed to stand, the integrity and transparency of state elections would continue to dissipate at the hands of leftwing ideologues. We hope the court agrees with our arguments and forces the Secretary to adhere to state law.”

According to the complaint, the 2023 EPM improperly places protected political speech at risk of criminal prosecution and has an unconstitutional chilling effect on protected political speech. The 2023 EPM also contradicts statutory requirements and exceeds statutory authority by opening the Presidential Preference Election to federal only voters, in essence, creating a new law out of whole cloth.

There are three counts for causes of action regarding the EPM. The first deals with speech. The second with free association. And the third with vagueness.

The Plaintiff asks the court to strike down the provisions challenged in this action that contradict or exceed statutory authority.

Read the challenge here.

The Far-Left Has No Case Against Voter Registration Laws, So Now They’re Crying Racism

The Far-Left Has No Case Against Voter Registration Laws, So Now They’re Crying Racism

When all else fails, cry racism. That seems to be the playbook the Far-Left utilizes any time it can’t make a coherent argument against election integrity laws. And here we are once again. The latest accusations of racism come amidst a series of depositions along with closing arguments in a lawsuit filed by a cabal of liberal organizations against two commonsense voter registration laws: HB 2243 and HB 2492.

Passed in 2022 and signed by then-Governor Ducey, HB 2243 ensures that only eligible voters remain registered by requiring regular voter roll maintenance. And so far, it has proven to be effective—revealing that over 78,000 individuals have been identified on Arizona’s voter rolls as either noncitizens or nonresidents. When you consider how close some of our state’s races were in 2022, these numbers should be great cause for alarm. But of course, many of those close races went in favor of Democrats, so the Left doesn’t want to ask too many questions.

HB 2492, which was also passed in 2022 and signed by then-Governor Ducey, bolsters safeguards to our voter registration process to require proof of citizenship ensuring that only U.S. citizens are voting in our elections. Where’s the controversy here? U.S. citizens cannot go into France, Australia, or any other country throughout the world and vote in their elections, so why should citizens from other countries be allowed to vote in our elections?

Not too long after both bills were signed into law, the Left filed a lawsuit against them and recently made a part of the proceedings about…the Arizona Free Enterprise Club (who is not a party in the lawsuit). That’s right. After apparently failing to construct sound legal arguments against HB 2243 and HB 2492, they have now embarked on a fishing expedition to harass the Club with ridiculous lawfare subpoenas. They spent countless hours deposing Senate President Warren Petersen and House Speaker Ben Toma in an effort to convince the judge that our organization was inappropriately exerting influence to pass both bills in a “racially-charged manner.” One Leftist group even submitted a claim complaining that the Free Enterprise Club is just too big and powerful and had an “outsized influence” on the process.

But contrary to the claims made by the Left, it was never a secret that the Club was involved in crafting and advocating for both bills. In fact, our role was out in the open, evident by the many articles we wrote on each bill (See here, here, here, and here for a sample.) On top of that, we testified in support of both bills at the legislature.

And after all this harassment, depositions, review of documents, and more, do you want to know what their “proof” is that these bills were racially motivated? In one of our articles, we used the word “Illegals” when explaining the need to provide proof of citizenship when registering to vote. That’s it. That’s their big smoking gun.

The fact that these absurd racism charges have become a focal point of their lawsuit only demonstrates how weak the Left’s case is against these laws.

These Far-Left groups know that they can attacks us with lawfare subpoenas, allege that our policy and advocacy efforts at the legislature are somehow nefarious, and make despicable accusations that our activities are racially motivated (with no evidence) because we can’t defend ourselves. So rather than engaging on policy or legal merits, the Left once again resorts to impugning our organization, hoping that some of the mud it’s slinging will stick.

As we have stated all along, these commonsense and reasonable laws are strong and necessary in a nation where more and more people are losing trust in the U.S. election system. That’s why the Arizona legislature passed them. That’s why then-Governor Ducey signed them. And that’s why Arizona’s election system has improved and will continue to improve with these laws on the books.

Help Protect Freedom in Arizona by Joining Our Grassroots Network

Arizona needs to have a unified voice promoting economic freedom and prosperity, and the Free Enterprise Club is committed to making that happen. But we can’t do it alone. We need YOU!

Join our FREE Grassroots Action List to stay up to date on the latest battles against big government and how YOU can help influence crucial bills at the Arizona State Legislature.

Arizona’s Voter Rolls Need a Massive Clean Up

Arizona’s Voter Rolls Need a Massive Clean Up

We’re less than a year away from our next election, and if Arizona Secretary of State Adrian Fontes is serious about doing his job, his primary focus should be on ensuring a process where it is easy to vote and hard to cheat. Instead, Fontes has been attempting to implement an Elections Procedures Manual (EPM) that is ripe with unlawful provisions all while ignoring a giant (and growing) elephant in the room.

In its last two quarterly reports to the Arizona state legislature, the Secretary of State’s office reported that over 78,000 individuals have been identified on our state’s voter rolls as noncitizens or nonresidents. This number includes:

    • Over 53,200 individuals who were reported to have been issued a driver’s license or the equivalent of an Arizona nonoperating license ID in another state.
    • Over 1,300 individuals who admitted to not being a U.S. citizen on a jury questionnaire.
    • Over 23,600 individuals who admitted to not being a resident of a county on a jury questionnaire.

These numbers should be great cause for alarm—especially when you consider how close some of our state’s races were in 2022—and these individuals should be immediately removed from our state’s voter rolls. So, what did Fontes do in response to this news? Nothing. That’s right. The Secretary of State’s office simply disclosed that a process for sending notices to these individuals, placing their voter registrations on inactive status, or canceling their voter registrations was “in development.”

How convenient.

But Fontes can’t hide for long. The fact is that these voter roll issues came to light because of two bills backed by the Free Enterprise Club and signed into law by then-Governor Ducey last year: HB 2492 and HB 2243. HB 2492 is a commonsense law that cracks down on state voter registration applications that do not include proof of citizenship. HB 2243 ensures regular voter list maintenance and helped uncover these most recent issues due to provisions in the bill that:

    • Require the Arizona Department of Transportation (ADOT) to furnish a list of people who have been issued a driver’s license in another state to the Secretary of State.
    • Direct the Secretary of State to report the number from ADOT (above) to the state legislature at the end of each quarter.
    • Direct the Secretary of State to report to the state legislature at the end of each quarter the number of people who have stated on a jury questionnaire that they are not U.S. citizens or not residents of the county.

With these provisions in mind, it’s clear that the number of noncitizens and nonresidents on our state’s voter rolls will continue to grow after each quarterly report is provided. That’s why it is essential to address these issues immediately. But the Left has proven time and time again that they will fight against every legitimate election reform that comes from conservatives. So, the Biden administration and a consortium of liberal organizations filed a lawsuit against HB 2492 and HB 2243. They are terrified of these commonsense laws and want to prevent them from taking effect by wrapping them up in litigation. It’s just another example of how the Left hates any form of true election integrity. And they will do whatever it takes to prevent it—including wasting time and your taxpayer dollars in court.

Help Protect Freedom in Arizona by Joining Our Grassroots Network

Arizona needs to have a unified voice promoting economic freedom and prosperity, and the Free Enterprise Club is committed to making that happen. But we can’t do it alone. We need YOU!

Join our FREE Grassroots Action List to stay up to date on the latest battles against big government and how YOU can help influence crucial bills at the Arizona State Legislature.