What happens next after the Supreme Court decision in the Arizona citizenship case?

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In a closely watched case, the U.S. Supreme Court this week rejected most of a Republican bid that would have disenfranchised more than 40,000 Arizona voters who did not provide proof of citizenship when they registered to vote, barring them from voting in November's presidential election.

But there's more to come, and more at stake. The Supreme Court has ruled on an emergency motion, but the complex case could once again upend voting precedent if it makes its way through the lower courts again.

Republicans are making a broad argument in their effort to invalidate the registrations, claiming that Congress cannot broadly regulate presidential elections, an authority the U.S. Justice Department says has existed for more than a century. Lawyers contesting that argument say they are prepared for the case to go back to the Supreme Court. The next planned step in the case is pleadings before the 9th U.S. Circuit Court of Appeals next month.

“The likelihood of a lower court taking up something like this, which is basically precluded by precedent, is very slim,” said Danielle Lang, a senior director of voting rights at the Campaign Legal Center, which represents several parties opposing the Republicans' request. “They made their strategy clear from the beginning, and it was a Supreme Court strategy.”

That means the question of whether Congress can regulate presidential elections — and also whether Arizona can impose the new restrictions on voters without proof of citizenship — could end up before the Supreme Court again, albeit not until after the November election.

Arizona's unique election laws require documented proof of U.S. citizenship to vote in state and local elections. But federal law allows voters without such proof to vote in federal elections, such as presidential and congressional elections. It simply requires that voters certify, under penalty of perjury, that they are citizens and eligible to vote. Since 2013, thanks to an earlier Supreme Court ruling, Arizona has had a split system that places voters who did not provide proof of citizenship on a “federal-only” list that now includes about 41,000 voters.

A Votebeat analysis of the 32,000 voters who have been on the all-federal voter list since last year found that they tend to be young residents and people who live on or near university campuses. Other research has found that newly naturalized voters are also more likely to be on the all-federal voter list.

Republicans say the different documentation requirements for federal elections could lead to non-citizens voting illegally. They are increasingly voicing this concern, even though such cases are extremely rare.

In 2022, Arizona Republicans passed laws that limited the participation of voters who only hold federal offices in elections and also required regular naturalization tests. After objections from voting rights groups, the U.S. District Court of Arizona ruled in May that key parts of the 2022 laws violated federal law, but allowed the state to enforce parts of the law that required more naturalization tests. Republican lawmakers and the state Republican Party then asked the appeals court to temporarily stay parts of that ruling.

The result of that request has been a legal back-and-forth in recent weeks, particularly over the forms voters use to register. First, a federal appeals court issued a tentative ruling that voters could continue to register as federal-only voters without proof of citizenship as long as they use a federal registration form instead of the far more commonly used state form. Then another panel of judges overturned that ruling and temporarily allowed residents to re-register as federal-only voters using the state form.

The Supreme Court's decision Thursday again bars Arizona residents without proof of citizenship from registering unless they use the federal form. The justices denied Republicans' request to stay other parts of the lower court's ruling on an emergency basis.

Arizona's Democratic Secretary of State Adrian Fontes had told the court that siding with the Republicans and changing the rules so close to the election could lead to chaos.

As is customary with an emergency order, the justices did not explain the reasons for their decision. However, seven justices revealed their position on the Republicans' request. Justices Samuel Alito, Neil Gorsuch and Clarence Thomas would have granted the emergency stay in full — allowing the tighter restrictions on federal-only voters. Justices Amy Coney Barrett, Elena Kagan, Ketanji Brown Jackson and Sonia Sotomayor would have rejected it in full. The positions of Chief Justice John Roberts or Justice Brett Kavanaugh were not disclosed in the order, but they presumably voted for the partial stay, since four justices officially stated they would prefer to reject it.

Lang of the Campaign Legal Center cautioned against reading too much into the justices' positions on a request for a preliminary injunction, especially since concerns about upending the law so close to the November election may have weighed heavily on the court. She said the so-called Purcell principle, which requires against changing election rules close to an election, should weigh against even the limited order approved by the majority of justices.

“I don't think we can rely on where the judges stand on the matter,” she said. “We just have to do our best.”

Votebeat Arizona reporter Jen Fifield contributed.

Carrie Levine is editor-in-chief of Votebeat and lives in Washington, DC. She is an editor and a regular contributor to Votebeat's national newsletter. You can reach Carrie at [email protected].

Meanwhile, at the Democratic Party Convention …

At least the Democrats are making it clear that they are convinced that Congress can regulate all federal elections.

During her speech accepting her presidential nomination Thursday, Vice President Kamala Harris reminded Democrats that two ambitious voting rights bills remain on hold, just waiting to be passed. As she ran through a list of fundamental freedoms at stake in November, she paused to note, “With this election, we finally have the opportunity to pass the John Lewis Voting Rights Act and the Freedom to Vote Act.”

The two bills have been on the table in various forms for some time and had good prospects for passage in 2021 and 2022, when Democrats briefly controlled both houses of Congress. Obstacles to passage in the Senate were two members of their own party, Joe Manchin of West Virginia and Kyrsten Sinema of Arizona, who would not agree to changing the filibuster rules to allow Democrats to push the measures through with a majority vote. Both senators are now on their way out of office.

The Freedom to Vote Act (formerly known as the For the People Act or HR1) is a comprehensive package of legislation that:

• Demand expanded voting options in all states, including absentee voting and in-person early voting;
• Establishing national standards for voter registration opportunities, accommodations for voters with disabilities, and voter ID laws;
• Provide legal and procedural protections for election officials and ensure the security of ballots.
• The aim is to prevent party-political constituency manipulation; and
• Reform campaign finance laws.

The John Lewis Voting Rights Advancement Act is primarily designed to strengthen the Voting Rights Act of 1965 to provide more protections against discriminatory voting rules, in response to the Supreme Court's 2013 overturning of key provisions. The bill seeks to restore a formula that requires certain local jurisdictions to seek Justice Department approval — called preclearance — before making changes to voting rules or districts.

Harris called the election an “opportunity” for these bills, because their fate depends entirely on who controls Congress in 2025. If the Democrats win back the House of Representatives and hold the Senate in November (which is a big If)They could then develop a strategy to get the bills passed. But there are no guarantees.

As Senate Majority Leader Chuck Schumer emphasized in optimistic interviews at the convention, Senate Democrats still need to overcome the filibuster tactic. With Manchin and Sinema gone, the path forward depends on the new additions to the Senate. Read Patrick Marley's excellent reporting in the Washington Post on the opposition to the bills – conservatives see them as federal intrusion – and the practical concerns that would likely make passing and implementing the legislation difficult for Democrats.

— Chad Lorenz

Chad Lorenz is editor-in-chief of Votebeat and lives in Denver. Contact Chad at [email protected].