The Supreme Court decides not to disenfranchise thousands of swing state voters

The Supreme Court handed the Republican Party a small victory on Thursday, making it marginally harder for new voters to register to vote in Arizona. 

The decision, however, could have been much worse for voting rights: Republicans asked the justices to strip thousands of already-registered voters of their ability to vote for president. Three justices voted to do just that, but six members of the Court rejected the request. 

Nevertheless, five members of the Court — every member of the Court’s Republican majority except for Justice Amy Coney Barrett — voted to make it marginally more difficult to register to vote in Arizona. 

So this is a victory for the GOP, but probably not a particularly significant one. If the three most MAGA-pilled justices, Justices Clarence Thomas, Samuel Alito, and Neil Gorsuch, had prevailed, a meaningful chunk of Arizona’s voters could have been locked out of voting in the 2024 presidential election. But that didn’t happen.

The Court’s decision to hand Republicans even a small victory here is almost certainly wrong, under a 2006 Supreme Court decision warning judges not to change a state’s election procedures too close to an election. But the impact of Thursday’s GOP victory is likely to be fairly modest.

Arizona’s ridiculously complicated voter registration system, explained

The case, known as Republican National Committee v. Mi Familia Vota, involves a ludicrously complicated system that Arizona uses to register voters. 

In 2004, Arizona enacted a law requiring voters to provide documentary proof of citizenship (such as a passport or a birth certificate) when registering to vote. This law, however, conflicts with a federal law, known as the National Voter Registration Act (NVRA), which permits voters in every state to register using a standardized federal form. The federal form requires Arizona voters to swear, under penalty of perjury, that they are citizens, but it does not require the same documentary proof that Arizona’s state law requires.

In Arizona v. Inter Tribal Council of Arizona (2013), the Supreme Court ruled that Arizona must comply with the NVRA and allow voters who submit the federal form to register — but there was a twist. Inter Tribal also suggested that Congress’s power over voter registration is limited to “federal elections,” so Arizona responded to Inter Tribal by creating two tiers of voters.

Voters who submit the state’s form (including the document proving citizenship) are registered to vote in all elections in Arizona. But voters who submit the federal form are deemed “federal-only” voters and may only vote in congressional and presidential elections — and not for state and local offices.

An expert witness who testified in the RNC case estimated that “approximately one-third of a [percent] of non-Hispanic White voters [in Arizona] are Federal-Only Voters, while a little more than two-thirds of a percent of minority voters are Federal-Only Voters.” So the universe of voters who registered using the federal form isn’t that large, but it is disproportionately non-white, which likely explains the GOP’s interest in this case — among other things, Republicans wanted to prevent these federal-only voters from casting a vote for president.

In 2020, President Joe Biden lost white Arizona voters, but very narrowly won the state due to his strong performance among Latinos. Biden’s margin of victory was only about three-tenths of a percent,  so even a small shift in who was allowed to vote in Arizona might have changed the result.

So what was actually at stake in the RNC v. Mi Familia Vota case?

Republicans asked the Court to impose three restrictions contained in a 2022 Arizona state law, which has never taken effect, and which was blocked by a federal court in 2023.

That law sought to ban Arizona’s federal-only voters from voting for president, and it also would have barred them from voting by mail. Although Thomas, Alito, and Gorsuch voted to allow these two restrictions to go into effect, a majority of the justices did not.

Additionally, the 2022 law sought to override a 2018 court order that allowed voters who submit the state form without a document proving citizenship to still register as a federal-only voter. Five justices voted to let this provision of the 2022 law take effect. So new voters who submit the state form without the required documentation will not be registered at all.

Voters who submit the federal form, however, will still be registered as federal-only voters.

This decision to allow even a small part of the 2022 law to take effect is almost certainly wrong. The 2022 law was blocked by a 2023 federal court decision, and the Supreme Court ruled in Purcell v. Gonzalez (2006) that “federal courts ordinarily should not alter state election rules in the period close to an election.”

Thursday’s order alters Arizona’s state election rules just over two months before a presidential election. Before the Supreme Court ruled, the lower court’s order blocking all three provisions of the 2022 law was in effect. Now the rules have changed, if only slightly.

In the past, the Court’s Republican majority has wielded Purcell very aggressively when lower court judges handed down voting rights decisions making changes that benefited Democrats. Justice Brett Kavanaugh has even suggested that the Purcell window opens up more than nine months before a general election. So the GOP’s request to change Arizona’s voting rules less than three months before an election should have been rejected if the justices were being consistent.

Still, unless the 2024 election is historically close, the likelihood that Thursday’s decision will change the result of the upcoming election is small. Again, a majority of the justices voted to reject the GOP’s most aggressive attack on the franchise — the provision of the 2022 law barring federal-only voters from voting for president.