Case Returns to District Court for Further Proceedings on Intent Claim
SAN FRANCISCO –The U.S. Court of Appeals for the Ninth Circuit on Tuesday held that a lower court incorrectly decided that an Arizona voter purge law was not intentionally discriminatory and sent the case back to the district judge for reconsideration. The claim, brought by a Latino civil rights group on behalf of voter assistance organizations, challenged House Bill 2243 as a violation of federal voting law and the U.S. Constitution.
The Ninth Circuit’s ruling reversing the lower court’s discriminatory intent decision was part of a broader ruling that upheld the lower court’s decision blocking portions of two Arizona voter registration laws. That broader ruling preserved the lower court’s decision that House Bill 2492 and H.B. 2243 added unnecessary requirements to voter registration and singled out naturalized U.S. citizen voters for registration cancellation. The appellate court also agreed with the lower court that the added registration requirements conflicted with federal registration law and that requiring voter purges within ninety days of federal elections violated federal law.
MALDEF (Mexican American Legal Defense and Educational Fund) and the Ortega Law Firm filed the original suit with the now-reversed claim in 2022 on behalf of Southwest Voter Registration Education Project (SVREP) and Promise Arizona (PAZ), two groups that register and assist voters in that state.
In February 2024, U.S. District Judge Susan R. Bolton ruled that a provision of H.B. 2243 violated the National Voter Registration Act (NVRA) of 1993 but that H.B. 2243 did not violate the Fourteenth and Fifteenth Amendments to the U.S. Constitution. MALDEF filed a unique appeal of that ruling that H.B. 2243 was not enacted with the intent to discriminate against Latinos.
“In these times, much unjustified anti-immigrant legislation is unfortunately grounded in racially discriminatory intent,” said Thomas A. Saenz, MALDEF president and general counsel. “As a result, judges must thoroughly and carefully review for such intent, in order to support our constitutional system.”
In its 63-page opinion, a three-judge panel of the Ninth Circuit said that had the lower court considered the evidence presented as a whole it could have ruled that HB 2243 was intentionally discriminatory. Throughout the opinion there are repeated references to the lower court’s failure to apply the standards for finding intentional discrimination properly, saying that the “district court’s reasoning imposed a higher evidentiary standard than that required” by law and therefore “clearly erred.”
“As we showed at trial, the Arizona Legislature and its racist allies like the Arizona Free Enterprise Club targeted Latino and proud naturalized citizen voters by passing H.B. 2243,” said Ernest I. Herrera, MALDEF Western Regional Counsel. “We are relieved that the Ninth Circuit has ordered the district court to consider all evidence of the Legislature’s true intent.”
Attorneys argued before the Ninth Circuit in September that Arizona’s history of discrimination against Latinos and the legislative origin of H.B. 2243 showed that the law’s requirements that election officials regularly check voter registrations against inaccurate and out-of-date data, were meant to target naturalized citizen voters and Latinos disproportionately. Although Judge Bolton blocked the H.B. 2243 requirement that county officials run voters’ records against outdated federal data based only on a “reason to believe” such voters were not U.S. citizens, she did not agree that the Legislature had discriminatory intent.
However, the law, part of a spate of so-called “election integrity” bills enacted following the 2020 presidential election, was written by the Arizona Free Enterprise Club (Free Enterprise Club), a group that advocates for private enterprise and limited government. According to attorneys, the Free Enterprise Club communicated with Arizona lawmakers throughout the bill process claiming to have proof of non-citizen voting and using the word “illegals” to describe duly registered voters the group claimed are undocumented immigrants. Much like the Legislature’s audit of the 2020 election, the Free Enterprise Club turned up no proof of non-citizen voting. In its opinion, the Ninth Circuit referred to the term “illegals” as evidence “of racial animus towards Latinos.” The judges said that if the lower court had considered the history of Arizona’s discriminatory treatment of people of color, the role that the Free Enterprise Club played in crafting the law, as well as the xenophobic political climate in which the bill was passed, together with other factors, it would have reached a different conclusion.
“Our team is pleased that the Ninth Circuit acknowledged that the district court did not fully consider all of the evidence for our intentional discrimination claim; courts must consider all circumstantial evidence when faced with intentional discrimination claims under the U.S. Constitution,” said Erika Cervantes, MALDEF staff attorney. “We are hopeful that the lower court will call H.B. 2243 for what it is —a state-concerted effort to silence and discriminate against Latino voters.”
Plaintiffs Promise Arizona (PAZ) and Southwest Voter Registration Education Project (SVREP) are voting rights groups that register and educate voters in Arizona and across the Southwest. The implementation of H.B. 2243 threatened the organizations’ voter education missions by forcing them to divert resources to respond to the new requirements and aid flagged voters, some of whom may be PAZ members.
“We have to fight at all levels to protect the rights of our communities,” said Petra Falcon, Executive Director of Promise Arizona. “The Ninth Circuit’s decision shows that democracy still exists, but that we have to fight for our right to vote.”
“Southwest Voter Registration Education Project (SVREP) works to ensure that Latinos can register to vote and have unfettered access to the ballot box,” said Lydia Camarillo, SVREP president. “This decision validates our mission by affirming that Latinos – in Arizona and elsewhere – have had to overcome obstacles to exercise the most sacred and basic right: the right to vote. It is our hope that the lower court will listen to what the judges on the Ninth Circuit have to say and determine that H.B. 2243 is discriminatory.”
Read the opinion HERE.