In Mi Familia Vota v. Fontes, civil rights groups challenged Arizona’s House Bill 2492, a 2022 law that, among other things, would bar Arizonians who register to vote without documentary proof of citizenship (e.g., a birth certificate or U.S. passport) from voting for president in any federal election. In defense of the law, the Republican National Committee (RNC) and Arizona legislators are advancing a baseless theory that under the Constitution’s Elections Clause, Congress does not have the authority to regulate presidential elections, so the state legislature is free to require documentary proof of citizenship for Arizonans voting for president. The Brennan Center, along with co-counsel, filed a friend-of-the-court brief in the Ninth Circuit Court of Appeals debunking this theory.
The provision at issue defies the Supreme Court’s 2013 holding in Arizona v. Inter Tribal Council of Arizona. that invalidated another Arizona law requiring documentary proof of citizenship as it applied to the federal registration form. In that case, the Supreme Court found that Arizona’s effort to impose additional registration requirements for federal elections conflicts with the National Voter Registration Act’s requirement that states “accept and use” the standard federal voter registration form.
Beyond the constitutionality of the provision itself, the RNC and legislators — who intervened in the case — are peddling a theory that would undermine Congress’s well-established authority to regulate presidential elections. Looking to the Elections Clause alone, the intervenors argue that because “president” is not explicitly listed, Congress is thereby barred from regulating presidential elections. But Congress draws its authority from both explicit and implied powers. And here, under the Elections Clause, Electors Clause, Necessary and Proper Clause, and the 14th and 15th Amendments, Congress unequivocally has authority to regulate presidential elections. The Ninth Circuit would be ignoring almost two centuries of history and precedent should it find otherwise.
On March 31, 2022, Mi Familia Vota and Voto Latino filed a complaint in the U.S. District Court for the District of Arizona challenging H.B. 2492. The RNC intervened in the case in August 2022 and Arizona legislators intervened in April 2023.
On September 14, 2023, the district court struck down H.B. 2492’s provision requiring documentary proof of citizenship for Arizonans voting for president as preempted by the National Voter Registration Act.
On May 8, 2024, the RNC and Arizona legislators appealed the case to the Ninth Circuit. They argue that Congress does not have the authority to regulate presidential elections, including through the National Voter Registration Act, so federal law does not stop Arizona from imposing additional requirements for Arizonans voting for president.
Separately, the RNC and Arizona legislators filed an emergency motion with the Supreme Court on August 16, 2024, asking it to revive portions of the law. On August 22, the Supreme Court declined to revive the provision requiring documentary proof of citizenship for Arizonans voting for president. (At the same time, the Court resurrected another restrictive provision of the law that requires counties to reject voter registrants who use the state, as opposed to the federal, registration form and fail to provide documentary proof of citizenship.)
On August 19, 2024, the League of Women Voters of the United States, League of Women Voters of Arizona, Secure Families Initiative, and Modern Military Association of America filed an amicus brief in the Ninth Circuit in support of the plaintiffs that refutes the claim that Congress lacks authority over presidential elections. Brennan Center joined the American Civil Liberties Union, ACLU of Arizona, Dēmos, and the law firm Keker, Van Nest & Peters LLP as co-counsel.
The brief first explains how courts for more than a century have consistently recognized that Congress has the power to regulate presidential elections.
Second, the brief explains how the historical context in which the framers drafted the Constitution and subsequent changes in states’ methods of elections make clear that the Elections Clause, Electors Clause, and Necessary and Proper Clause all vest Congress with power over presidential elections. Moreover, Congress was given additional authority to regulate presidential elections by the 14th and 15 Amendments.
Third, the brief explains how removing Congress’s authority over presidential elections could cause extreme confusion about voter registration, risking disenfranchisement of eligible voters. Doing so would undermine not only the National Voter Registration Act but also other federal voting rights laws including the Uniformed Overseas Citizens Absentee Voting Act and the Military and Overseas Voter Empowerment Act.
Oral argument before the Ninth Circuit took place on September 10, 2024.
Case Documents
