Appeals Court Reinstates Arizona Law Enabling Cancellation of Voter

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The split decision reversed a preliminary injunction against the law enacted in 2022.

A federal appeals court on Sept. 20 reinstated two provisions of a law pertaining to elections in Arizona that had been blocked.

The U.S. Court of Appeals for the Ninth Circuit panel reinstated the law that enables county recorders to cancel a voter’s registration if the county learns the voter has registered to vote in another county. The duplicate registration must be confirmed with the other county, per the law.

U.S. District Judge G. Murray Snow in 2022 entered a preliminary injunction blocking the provisions, finding that it conflicted with the National Voter Registration Act, which only permits revoking voter registration if the voter him or herself confirms they moved or if the state sends a notice to the voter and they don’t respond.

The panel majority, though, said that that groups that sued over the provision don’t have standing to challenge it.

U.S. Circuit Judge Kenneth K. Lee, citing a U.S. Supreme Court decision from earlier this year, said the organizations must show they’re directly affected by a law to have standing to challenge and that the groups “alleged only a frustrated mission and diverted resources.”

Even if they had standing, the provision does not conflict with the National Voter Registration Act, because the voter is confirming they’ve changed residences by registering to vote in a new county, Lee wrote separately in a concurring opinion.

U.S. Circuit Judge Daniel P. Collins joined Lee in the ruling on standing.

Judge Jacqueline H. Nguyen, dissenting in part, wrote that the organizations do in her view have standing to challenge the cancellation provision.

“While plaintiffs could continue to register and educate voters without changing their practices in response to the cancellation provision, the registrations would be inadequate, and the education incomplete, under plaintiffs’ view of the law,” she said.

She added: “Ultimately, it doesn’t matter that the majority’s conclusory dismissal of the merits is wrong. It is enough, for standing purposes, that plaintiffs’ statutory interpretation is at least arguable. The majority errs by requiring more.”

The majority also withdrew the preliminary injunction against another part of the law, which opens a person who “knowingly provides a mechanism for voting to another person who is registered in another state, including by forwarding an early ballot addressed to the other person” up to a felony charge.

Snow, the district judge, had ruled that the provision was unconstitutionally vague because “mechanism for voting” was not defined by legislators.

“It is, therefore, not possible for a person of average intelligence to know how it will be interpreted,” he wrote at the time. “As a result, many of plaintiffs’ organizational efforts like voter registration drives might fall within the felony provision.”

While the organizations had standing to challenge the felony provision because they face the possibility of prosecution, Lee said in the new decision, they’re unlikely to prevail in the challenge because the phrase “mechanism for voting” is not unconstitutionally vague.

“Construed under its ordinary meaning, the phrase ’mechanism for voting‘ likely refers to a process, technique, or instrument for casting a vote,” he said. “That plain-meaning construction of the phrase does not include activities such as voter registration because providing a mechanism for registering to vote is different from providing a ’mechanism for voting.’”

The Arizona Secretary of State’s office, which has been defending the law, did not respond to a request for comment. A lawyer representing the organizations that sued, which include the Arizona Alliance for Retired Americans, did not return an inquiry.