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Arizona Gov. Ducey to test federal courts with new proof of citizenship voting rule

An attorney employed by the GOP-controlled state House told legislators that implementing the legislation would violate federal law.

Arizona Gov. Doug Ducey signed legislation Wednesday re-establishing proof of citizenship voting requirements, setting up a showdown with courts that have said a previous version of the election rule violated federal law.

The bill, passed by the Republican-controlled Legislature, puts the onus on elections workers and voters to validate citizenship before a registrant can vote in presidential elections or cast a ballot by mail.

“Election integrity means counting every lawful vote and prohibiting any attempt to illegally cast a vote,” Ducey said in a letter Wednesday detailing his support for the bill.

The Republican governor argued the measure would address the growing number of registrants who have not provided proof of citizenship to election workers. In 2020, he said, there were more than 11,000 voters who had not provided proof of citizenship.

President Joe Biden won Arizona by less than 11,000 votes. Most voters in Arizona vote by mail.

Alex Gulotta, Arizona state director at All Voting Is Local, countered that the new law will disenfranchise eligible voters and is based on debunked conspiracy theories.

“This bill will mean that some people who are clearly allowed to vote and are authorized to vote will not be able to exercise their right to vote,” he told NBC News. “And it’s being done based on lies and conspiracy theories that have been completely debunked.”

Arizona Republicans have repeatedly questioned the integrity of the 2020 presidential election, despite broad evidence showing the results were accurate and secure. State Senate Republicans orchestrated a discredited partisan ballot review in Maricopa County in 2021 and have considered a number of restrictive election bills this year.

The new voting law is scheduled to take effect before the November midterm elections.

Critics of the legislation and a state House of Representatives rules attorney said in testimony before lawmakers that the bill would violate the National Voter Registration Act, which says voters must be able to register for federal elections using only a federal form, one that asks voters to swear under penalty of perjury that they are citizens but does not require documentary proof.

When a state representative asked the House Rules Committee attorney, Jennifer Holder, during a House committee hearing if there was an amendment that could bring the bill in compliance with federal law, she said she could not think of one.

“As we see it, the Supreme Court case pretty much addressed this scenario,” Holder said.

Since 2004, Arizona has required voters registering on state forms to prove their citizenship with documents like a driver’s license or photocopy of a U.S. passport. In 2013, the U.S. Supreme Court ruled Arizona cannot force voters who register on federal forms to also provide proof of citizenship. That means voters who do not provide such documentation are only allowed to vote in federal elections in Arizona.

State Rep. Travis Grantham, a Republican, said he believed the legal precedent and U.S. law amounted to “federal overreach.” He voted to advance the legislation, saying, “I think this is a fight worth having.”

That legal fight is certainly coming.

Roy Herrera, a Democratic election lawyer in Arizona, told NBC News moments after Ducey signed the bill that he was already discussing legal responses with various groups.

"We're definitely going to see a lawsuit on the grounds that this violates the NVRA," he said, referring to the National Voter Registration Act of 1993.

He added that it appeared Arizona Republicans were keen on relitigating the issue with the Supreme Court, which now has more conservative justices than it did in 2013.

Critics of the new law say it may affect voters who registered before 2004 and haven't yet provided documentary proof of citizenship to election workers, though it's unclear how many such voters exist in the state.

Ducey argued in his letter that the law would not apply to those voters, but Herrera said the issue would likely factor into the legal fights.

In recent years, other GOP-led states have seen their proof-of-citizenship laws struck down in court. A federal judge tossed a similar Kansas law in 2018.

For opponents of the Arizona law, another major concern is the effect the new rules will have on election workers.

Critics like Jen Marson, executive director of the Arizona Association of Counties, a group that represents county workers including election officials, say the law puts workers in an impossible position.

“This bill will put county recorders and Election Officials in a position of choosing — do we violate state law, or do we violate federal law?”