Mi Familia Vota v. Fontes

Arizona maintains two separate voter rolls. The first consists of voters who can vote a “full ballot,” meaning they can vote in all federal, state, and local elections. The second consists of so-called “federal-only” voters, who can only vote in elections for the United States House of Representatives, Senate, and President of the United States. 

The National Voter Registration Act requires states to “use and accept” a federal voter registration form developed by the United States Election Assistance Commission, which does not require proof of citizenship. Applicants must check a box swearing, under penalty of perjury, that they are a United States citizen. The United States Supreme Court has previously ruled that states must accept this form, meaning that, at the very least, voters are not currently required to have proof of citizenship to register to vote in federal elections for Congress and the President.  

In 2005, a ballot initiative enacted by Arizona voters called Proposition 200 took effect. The law required applicants for voter registration to show proof of citizenship to register to vote in state elections. Litigation ensued, and the United States Supreme Court ruled in 2012 that states could require proof of citizenship to register to vote in state and local elections but could not require proof of citizenship to be presented when registering with the federal voter registration form. 

Along with the litigation that came before the Court, another case brought by the League of United Latin American Citizens (LULAC) led to a consent decree (“LULAC consent decree”) between the state and the plaintiffs. Under its terms, applicants could be registered as federal-only voters using the state voter registration form if they failed to present documentary proof of citizenship (DPOC). They would still be required to show DPOC if they wished to be registered as full-ballot voters using the state form. 

This forms the genesis of Arizona’s dual voter-roll system and the background of this case.   

In 2022, Arizona enacted HB 2492, which made several changes to the state’s election laws:  

• Arizona voters were required to show DPOC to vote in presidential elections. 
• Proof of citizenship could be satisfied if a citizen showed:  
  • A driver license issued after October 1, 1996, by the Arizona Department of Transportation or equivalent agency of another state if the agency indicates on the license that the person provided satisfactory proof of United States citizenship. 
  • A photocopy of the applicant's birth certificate.  
  • A U.S. passport or photocopy of pertinent pages of the applicant's U.S. passport identifying the applicant and the applicant's passport number. 
  • United States naturalization documents or the number of the certificate of naturalization, which must be verified with the United States Immigration and Naturalization Service by the county recorder. 
  • Other documents or methods of proof established pursuant to the Immigration Reform and Control Act of 1986. 
  • The applicant's Bureau of Indian Affairs card number, tribal treaty card number, or tribal enrollment number. 
• Arizona voters who did not show proof of citizenship, and thus could only vote in federal elections, were not allowed to receive an early mail ballot.  
• County recorders and the Arizona Secretary of State also were required to provide the Arizona Attorney General with a list of all individuals who were registered to vote but did not provide proof of citizenship under A.R.S. 16-166.  
• Voter registration applicants could not use the state voter registration form if they did not have DPOC. Under the new law, doing so would lead to summary rejection of the form.  

Previous Supreme Court precedent has confirmed Congress’ power to regulate presidential elections along with congressional elections, and by extension, the power to bar states from requiring proof of citizenship to vote in presidential elections.  

Several cases were filed challenging HB 2492. In May 2024, the United States District Court for the District of Arizona struck down several provisions of the bill, including the provisions requiring proof of citizenship to vote in presidential elections and to receive early mail ballots, as well as the provision forbidding the use of the state voter registration form without DPOC to register applicants as federal-only voters.  

The defendants requested a stay of the District Court’s judgment and were denied, leading them to request an emergency stay from the Supreme Court, which rejected the request for all but one provision of the law, which banned the use of state voter registration forms without DPOC by applicants.  

In its merits brief before the Ninth Circuit, the defendants asserted that the NVRA did not apply to presidential elections, and that state legislatures were free to require DPOC to vote in presidential elections. The legislature also asked the Ninth Circuit to rule that the LULAC consent decree did not prevent them from rejecting all state voter registrations forms without DPOC.  

The League of Women Voters of Arizona (LWV Arizona), the League of Women Voters of the United States (LWVUS), the Secure Families Initiative, and Modern Military Association of America filed an amicus brief in the Ninth Circuit supporting the lower court’s ruling. The brief argued that precedent and history showed that the NVRA and federal regulation applied to presidential elections, and that adopting the Legislature’s position would lead to chaos in election administration and disenfranchisement for many voters, including calling into the question the constitutionality of laws protecting the rights of overseas military members and families to vote.  

LWV Arizona, LWVUS, and co-amici were represented by ACLU; DEMOS; the Brennan Center for Justice at NYU School of Law; and Keker, Van Nest, & Peters LLP.