Unconstitutional and on the Rise: Proof of Citizenship Requirements in 2022

by Liz Avore

June 27, 2022

2021 was a historic year for election legislation, with nearly 2,500 election-related bills introduced in all 50 states resulting in 220 bills ultimately enacted. Significantly fewer bills impacting voter access have been enacted in 2022 compared to 2021 so far. This is an expected decline for an election year, when state legislatures make fewer changes to election law because these changes are difficult to implement.

Yet despite the overall decline in legislation impacting access to the ballot box, this year we are seeing a type of legislation emerge that we did not see last year. States are resurrecting efforts to create a barrier to voting access found unconstitutional and in violation of federal law by multiple courts: proof of citizenship requirements. These renewed efforts come as we’ve seen major shifts in the makeup and politics of the Supreme Court in recent years – and some decisions with life-altering impact on our civil liberties already delivered.

A Brief History

Over the past decade, proof of citizenship requirements have been repeatedly rejected by the courts.

In 2004, Arizona voters passed Proposition 200, a ballot initiative requiring that voters provide documentary proof of citizenship, such as a birth certificate or passport, in order to register to vote in the state. In 2011, Kansas lawmakers passed similar legislation. And in 2016, Alabama, Georgia, and Kansas all tried to amend the federal voter registration form for their states to require documentary proof of citizenship to register to vote.

Federal lawsuits were filed immediately to enjoin each of these requirements. All of them were ultimately found to violate federal law. In 2013, the Supreme Court found that Arizona’s law violated the National Voter Registration Act. The 10th Circuit Court of Appeals ultimately found the Kansas law unconstitutional in 2020. That litigation proved expensive for Kansas, costing taxpayers nearly $2 million in legal fees. Finally, the U.S. District Court for the District of Columbia rejected Alabama, Georgia, and Kansas’ efforts to amend the federal voter registration form in 2021.

According to a 2006 survey sponsored by the Brennan Center, as many as 13 million U.S. citizens (7%) do not have ready access to citizenship documents.

A 2022 Resurgence

In 2016, states seemed to have stopped passing new proof of citizenship requirements. But this year, with the makeup and politics of the Supreme Court shifting significantly in recent years – and with some decisions that gravely impact our civil liberties already delivered – Arizona passed a law that will directly challenge federal court decisions on proof of citizenship requirements, despite similar requirements in Kansas, Georgia, and Alabama being rejected by federal courts just last year. It’s expected that these new cases will ultimately reach the Supreme Court.

The new Arizona law prohibits registered voters from voting in presidential elections and voting by mail in any election if they registered without providing documentary proof of citizenship. This law also requires the attorney general and county recorders to investigate certain applicants’ citizenship status. Many local election officials voiced opposition to the bill before it was signed into law. In a letter requesting Governor Ducey to veto the legislation, a bipartisan group of local election officials said it would put “county recorders and election officials in the untenable position of trying to comply with state law while at the same time clearly violating the federal National Voter Registration Act.”

Proof of citizenship legislation was active in a total of ten states this year.

Bound for the Supreme Court

Arizona’s new law, H.B. 2492, is currently being litigated, and it is perceived as a challenge to the 2013 U.S. Supreme Court decision striking down an earlier attempt by the state to require proof of citizenship for voter registration. In that decision, the Supreme Court ruled states could not add registration requirements for voters in federal elections that go beyond what the federal registration form requires.

If this new round of litigation reaches the Supreme Court, and the Court ultimately decides to reverse its 2013 decision, we can expect many more states to advance documentary proof of citizenship bills.

Our team will be watching closely for a decision on this new legislation, as well as for how this trend in election legislation progresses in the coming years. As always, you can track proof of citizenship bills in real-time using our State Voting Rights Tracker.

[class^="wpforms-"]
[class^="wpforms-"]