Assistant Attorney General Kristen Clarke Delivers Remarks Announcing Lawsuit Against the State of Arizona Over Restrictive Voter Registration Requirements

Good afternoon.

My name is Kristen Clarke, Assistant Attorney General for the Civil Rights Division of the U.S. Department of Justice. I am here today to announce that the Department of Justice has filed a lawsuit against the State of Arizona under Section 6 of the National Voter Registration Act (NVRA) of 1993 and the Civil Rights Act of 1964. The Civil Rights Division is proud to stand with the U.S. Attorney’s Office for the District of Arizona in bringing this important lawsuit.

The complaint challenges voter registration restrictions and restrictions on federal-only voters imposed by Arizona House Bill 2492, a recently-enacted law that’s set to take effect in January of 2023.

House Bill 2492’s onerous documentary proof of citizenship requirement for certain federal elections constitutes a textbook violation of the National Voter Registration Act. For nearly three decades, the National Voter Registration Act has helped to move states in the right direction by eliminating unnecessary requirements that have historically made it harder for eligible voters to access the registration rolls. Arizona has passed a law that turns the clock back, by imposing unlawful and unnecessary requirements that would block eligible voters from the registration rolls for certain federal elections. This lawsuit reflects our deep commitment to using every available tool to protect all Americans’ right to vote and to ensure that their voices are heard in our democracy.

A word about our litigation. Our complaint contends that HB 2492 violates the NVRA by imposing restrictions on voter registration applicants who register to vote using the NVRA’s national voter registration form. HB 2492 requires that applicants produce documentary proof of citizenship before they can vote in presidential elections or vote by mail in any federal election. Arizona is a repeat-offender when it comes to attempts to make it harder to register to vote. HB 2492 is in direct conflict with the 2013 U.S. Supreme Court decision issued in Arizona v. Inter Tribal Council of Arizona, a 2013 case. In that case, the Court rejected an earlier attempt by Arizona to impose a similar documentary proof of citizenship mandate on applicants seeking to vote in federal elections.

During public hearings preceding the adoption of this latest law, Arizona’s own nonpartisan legislative counsel warned legislators that the NVRA preempts HB 2492’s documentary proof of citizenship requirement for applicants completing the federal form who seek to vote in federal elections. These nonpartisan counsel added that imposing such a requirement would violate federal law in light of the U.S. Supreme Court decision in Arizona v. Inter Tribal Council of Arizona. Nonetheless, the Legislature ignored these warnings and enacted HB 2492 anyway.

The United States’ complaint also contends that House Bill 2492 violates the Materiality Provision of the Civil Rights Act by requiring election officials to reject voter registration forms based on errors or omissions that are not material to establishing a voter’s eligibility to cast a ballot. Arizona’s law violates the Materiality Provision in four ways.

Let me just say a word about the Civil Rights Act of 1964. This law prohibits election officials from denying the right of any individual to vote in any election because they made an error or omission that is not material in determining whether they are qualified to vote in that election. As one court has noted, Congress enacted the Materiality Provision of the Civil Rights Act in part “to address the practice of requiring unnecessary information for voter registration,” which “would increase the number of errors or omissions on the application forms, thus providing an excuse to disqualify voters.” That’s a case, Schwier v. Cox, issued by the 11^th Circuit in 2003.

Here, under Arizona’s law, documentary proof of citizenship is not required for voter registration applicants who successfully complete the federal registration form and seek to vote in person in congressional elections. In other words, that documentation is not material to determining a voter’s qualifications for those contests. Despite that fact, HB 2492 requires that same documentation to be eligible to vote in presidential elections, or by mail in any federal election. This additional requirement is not material.

Second, even if registrants provide documentary proof of citizenship, HB 2492 requires election officials to reject their applications if they don’t check a box indicating that they’re a U.S. citizen. Checking this box is not material to establishing the voting qualifications of applicants who have already proven that they are U.S. citizens.

Third, under HB 2492, election officials will reject any State voter registration form that fails to include the prospective voter’s place of birth. Prior to HB 2492, Arizona voter registration forms did not require applicants to provide their specific city or location of birth. And for good reason, that information is not material to establishing whether a voter is a U.S. citizen because of naturalization and expatriation patterns, among other reasons.

Fourth, and finally, voters who are already registered to vote in federal elections under rules established by the Supreme Court’s 2013 decision in the case that I referenced earlier, must now provide documentary proof of citizenship if they wish to vote in presidential elections or by mail in any federal election. It cannot be that these eligible and, in many instances, long-time voters are now barred from voting unless they comply with a documentary proof of citizenship requirement that has already been found by the U.S. Supreme Court to be pre-empted by the NVRA.

Our lawsuit seeks to prevent Arizona from enforcing the restrictive voter registration requirements contained in House Bill 2492 that violate the NVRA and the Civil Rights Act. This will afford all eligible citizens in Arizona a meaningful opportunity to register to vote and exercise their fundamental right to participate in our elections.

I’ll note, in closing, that the Department of Justice’s Civil Rights Division continues to examine state laws affecting elections to assess whether or not any voting restrictions violate federal law. Where we believe the rights of Americans have been violated, we will not hesitate to act. We will continue to use all of the tools provided by federal law, including the NVRA, the Civil Rights Act of 1964, and the Voting Rights Act, the Americans with Disabilities Act, the Uniformed and Overseas Citizens Absentee Voting Act, and the Help America Vote Act, to ensure that we protect every qualified American seeking to participate in our democracy.

Thank you.