Amicus Curiae Brief — Republican National Committee, et al., Applicants v. Mi Familia Vota, et al.

No. 24A164

In the Supreme Court of the United States

__________

REPUBLICAN NATIONAL COMMITTEE, ET AL.,

Applicants,

v.

MI FAMILIA VOTA, ET AL.,

Respondents.

__________

ON EMERGENCY APPLICATION FOR STAY PENDING APPEAL FROM THE

U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

__________

BRIEF FOR HONEST ELECTIONS PROJECT, RESTORING INTEGRITY

AND TRUST IN ELECTIONS, INC., AND CENTER FOR ELECTION

CONFIDENCE, INC. AS AMICI CURIAE IN SUPPORT OF APPLICANTS

__________

CHRISTOPHER E. MILLS

Counsel of Record

Spero Law LLC

557 East Bay Street #22251

Charleston, SC 29413

(843) 606-0640

cmills@spero.law

Counsel for Amici Curiae

TABLE OF CONTENTS

Table of Authorities ....................................................................................................... ii

Interest of Amici Curiae ................................................................................................ 1

Summary of the Argument ............................................................................................ 3

Argument ....................................................................................................................... 4

I. The NVRA does not preempt Arizona’s limits on mail-in voting........................ 4

A. The NVRA’s text does not preempt Arizona’s mail-in rule. ......................... 7

1.

The NVRA’s “accept and use” requirement does not preempt the

mail-in rule. ........................................................................................... 8

2.

The NVRA’s confirmation that States may limit first-time voters does

not preempt Arizona’s mail-in rule. .................................................... 11

B. The NVRA’s purposes do not preempt Arizona’s mail-in rule. .................. 16

II. Allowing the decision below to remain in effect would create massive

uncertainty nationwide and threaten the integrity of Arizona’s elections. ..... 19

A. Declining to issue a stay would create significant uncertainty about mailin vote rules long applied in many States. ................................................. 20

B. Declining to issue a stay would undermine Arizona’s important interest in

protecting the integrity of its elections. ...................................................... 21

Conclusion .................................................................................................................... 24

i

TABLE OF AUTHORITIES

CASES

Anderson v. Celebrezze, 460 U.S. 780 (1983) .............................................................. 21

Arizona v. Inter Tribal Council of Arizona, Inc.,

570 U.S. 1 (2013) ............................................................................ 3, 5, 6, 7, 8, 11, 15

Bartenwerfer v. Buckley, 598 U.S. 69 (2023) .............................................................. 18

Barton v. Barr, 590 U.S. 222 (2020)............................................................................ 13

Brnovich v. Democratic Nat’l Committee, 594 U.S. 647 (2021).................................. 22

Burdick v. Takushi, 504 U.S. 428 (1992) .................................................................... 21

Burson v. Freeman, 504 U.S. 191 (1992) .................................................................... 22

Chamber of Com. of U.S. v. Whiting, 563 U.S. 582 (2011) ......................................... 16

Crawford v. Marion County Election Bd., 553 U.S. 181 (2008) ................................. 22

CSX Transp., Inc. v. Easterwood, 507 U.S. 658 (1993) ................................................ 5

Ex parte Siebold, 100 U.S. 371 (1879)......................................................................... 10

FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120 (2000) ............................ 14

Free Enter. Fund v. Pub. Co. Acct. Oversight Bd., 561 U.S. 477 (2010) .................... 21

Geier v. Am. Honda Motor Co., 529 U.S. 861 (2000) .................................................. 11

Griffin v. Roupas, 385 F.3d 1128 (CA7 2004) ............................................................. 22

Harrington v. Purdue Pharma LP, 144 S. Ct. 2071 (2024) ........................................ 18

Kansas v. Garcia, 589 U.S. 191 (2020) ............................................... 5, 6, 7, 11, 16, 19

King v. Burwell, 576 U.S. 473 (2015) .......................................................................... 13

Labrador v. Poe, 144 S. Ct. 921 (2024) ....................................................................... 16

Luft v. Evers, 963 F.3d 665 (CA7 2020) ........................................................................ 9

Luna Perez v. Sturgis Pub. Sch., 598 U.S. 142 (2023)................................................ 18

Marx v. Gen. Revenue Corp., 568 U.S. 371 (2013) ...................................................... 12

McDonald v. Bd. of Election Comm’rs of Chi., 394 U.S. 802 (1969) ................ 9, 20, 21

Moore v. Harper, 600 U.S. 1 (2023) ............................................................................... 5

Ohio Democratic Party v. Husted, 834 F.3d 620 (CA6 2016) ....................................... 9

Pacific Gas & Elec. Co. v. State Energy Res. Conservation & Dev. Comm’n, 461

U.S. 190 (1983) ........................................................................................................... 7

PLIVA, Inc. v. Mensing, 564 U.S. 604 (2011) ............................................................. 11

Pulsifer v. United States, 601 U.S. 124 (2024)............................................................ 16

ii

Purcell v. Gonzalez, 549 U.S. 1 (2006) ........................................................................ 22

Rodriguez v. United States, 480 U.S. 522 (1987) ........................................................ 18

Texas Democratic Party v. Abbott, 961 F.3d 389 (CA5 2020)..................................... 20

Texas Democratic Party v. Abbott, 978 F.3d 168 (CA5 2020)..................................... 21

Tully v. Okeson, 78 F.4th 377 (CA7 2023) .................................................................. 21

Tully v. Okeson, 977 F.3d 608 (CA7 2020) .................................................................. 20

Virginia Uranium, Inc. v. Warren, 587 U.S. 761 (2019) .................................. 6, 16, 18

W. Virginia v. EPA, 597 U.S. 697 (2022) ............................................................... 13-14

Whitman v. American Trucking Assns., Inc., 531 U.S. 457 (2001) .............................. 6

Wisconsin Pub. Intervenor v. Mortier, 501 U.S. 597 (1991) ....................................... 13

Wyeth v. Levine, 555 U.S. 555 (2009) .......................................................................... 12

STATUTES

52 U.S.C. § 20501 ............................................................................................... 9, 16, 17

52 U.S.C. § 20503 ....................................................................................................... 7, 8

52 U.S.C. § 20504 ........................................................................................................... 8

52 U.S.C. § 20505 ......................................................................................... 8, 11, 12, 23

52 U.S.C. § 20506 ........................................................................................................... 8

52 U.S.C. § 20507 ........................................................................................................... 8

52 U.S.C. § 20508 ........................................................................................................... 8

52 U.S.C. § 21083 ......................................................................................................... 10

Ariz. Rev. Stat. § 16-1005 ............................................................................................ 23

Ariz. Rev. Stat. Ann. § 16-127 ....................................................................................... 5

Conn. Gen. Stat. § 9-135 .............................................................................................. 20

Del. Code tit. 15, § 5502 ............................................................................................... 20

N.Y. Elec. Law § 8-400................................................................................................. 20

OTHER AUTHORITIES

139 Cong. Rec. S2988-01 (daily ed. Mar. 17, 1993) ...................................................... 8

B. Christie, Former San Luis Mayor Pleads Guilty to Illegally Collecting Early

Ballots in 2020 Primary, AZCentral (June 2, 2022),

https://perma.cc/ML8R-P6EW ................................................................................. 23

D. Biggers & M. Hanmer, Who Makes Voting Convenient? Explaining the Adoption

of Early and No-Excuse Absentee Voting in the American States, 15 State Pol.

& Pol’y Q. 192 (2015), https://tinyurl.com/3rvkjb5c ................................................ 20

iii

Guillermina Fuentes, Voter Fraud Report, The Heritage Foundation (last visited

Aug. 12, 2024) https://perma.cc/3DLB-HMS4 ......................................................... 23

J. Fortier, Absentee and Early Voting, Trends, Promises, and Perils (Am. Enter.

Inst. Press 2006)....................................................................................................... 20

National Conference of State Legislatures, Table 2: Excuses to Vote Absentee

(Jan. 3, 2024), https://perma.cc/R955-ZGG8 ........................................................... 20

R. Gonzales, North Carolina GOP Operative Faces New Felony Charges That

Allege Ballot Fraud, NPR (July 30, 2019), https://perma.cc/VU86-6G8J .............. 23

R. Stein & P. Garcia-Monet, Voting Early but Not Often, 78 Soc. Sci. Q. 657

(1997) ........................................................................................................................ 20

S. Rep. 103-6 (1993) ..................................................................................................... 15

CONSTITUTIONAL PROVISIONS

U.S. Const. art. I, §4 ................................................................................................ 5, 12

iv

INTEREST OF AMICI CURIAE

The Honest Elections Project is a nonpartisan organization devoted to supporting

the right of every lawful voter to participate in free and honest elections. Through

public engagement, advocacy, and public-interest litigation, the Project defends the

fair, reasonable measures that legislatures put in place to protect the integrity of the

voting process. The Project supports commonsense voting rules and opposes efforts to

reshape elections for partisan gain. It has a significant interest in this case, which

implicates the state legislature’s preeminent role in setting the rules for elections.*

Restoring Integrity and Trust in Elections, Inc. is a 501(c)(4) non-profit

organization with the mission of protecting the rule of law in the qualifications for,

process and administration of, and tabulation of voting throughout the United States.

RITE has a particular interest in ensuring that courts do not legislate election rules

from the bench—especially mere months before an election. RITE supports laws and

policies that promote secure elections and enhance voter confidence in the electoral

process. Its expertise and national perspective on voting rights, election law, and

election administration will assist the Court in reaching a decision consistent with

the Constitution and the rule of law.

Center for Election Confidence, Inc. is a non-profit organization that promotes

ethics, integrity, and professionalism in the electoral process. CEC works to ensure

that all eligible citizens can vote freely within an election system of reasonable

* In accordance with Rule 37.6, no counsel for a party authored this brief in whole or in part, and no

person or entity, other than amici curiae, their members, or their counsel, made a monetary

contribution to its preparation or submission.

1

procedures

that

promote

election

integrity,

prevent

vote

dilution

and

disenfranchisement, and instill public confidence in election systems and outcomes.

To accomplish these objectives, CEC conducts, funds, and publishes research and

analysis regarding the effectiveness of current and proposed election methods. CEC

is a resource for lawyers, journalists, policymakers, courts, and others interested in

the electoral process. CEC also periodically engages in public-interest litigation to

uphold the rule of law and election integrity and files amicus briefs in cases where its

background, expertise, and national perspective may illuminate the issues under

consideration.

2

SUMMARY OF THE ARGUMENT

Like most States, Arizona has long provided opportunities for voters to cast a

ballot by mail—with safeguards to ensure that the absentee ballot process maintains

its integrity. One of those safeguards is that applicants must provide documentary

proof of citizenship to vote by mail. Other voters who have properly registered may

still vote in-person, either during Arizona’s generous early voting period or on

Election Day.

In a novel decision that would disrupt absentee regulations nationwide, the

district court held that the National Voter Registration Act preempts Arizona’s law

and enjoined it. The court identified no express preemption language, but found

preemption based on some undefined combination of three elements: the NVRA’s

requirement that States “accept and use” the Federal Form for voter registration, its

confirmation that States can require first-time voters to vote by mail, and a couple of

its purpose statements about increasing voter registration. None of this individually

or in combination suffices to meet the high threshold of showing preemption,

especially in an area in which “the Elections Clause empowers Congress to regulate

how federal elections are held, but not who may vote in them.” Arizona v. Inter Tribal

Council of Arizona, Inc., 570 U.S. 1, 16 (2013).

The NVRA, unsurprisingly, focuses on voter registration, and evidently no court

before has held it to preempt state regulations of voting methods. As it must, Arizona

accepts and uses the Federal Form to register voters for federal elections; it simply

requires that voters seeking to vote by mail provide proof of citizenship. Nothing in

the NVRA speaks to that choice, much less overrides it. The statute’s confirmatory

3

statement that States may place certain in-person voting requirements on first-time

voters does not imply rejection of all other requirements, for again, the statute’s focus

is on registration. Last, though the NVRA seeks to promote voter registration, it also

explicitly seeks to protect election integrity—and all its purposes are tied to

registration. The district court erred in extrapolating a purpose statement about

registration to mail-in voting and simplistically elevating that purpose above others.

Letting the injunction below stand—based on see-sawing, unreasoned Ninth

Circuit orders—would have significant negative repercussions. First, the injunction

sows uncertainty across the nation, as its logic imperils commonplace absentee voting

regulations. Effectively, the district court’s preemption approach would seem to

mandate nationwide, no-excuse absentee balloting—and to preempt many other

routine election rules, if some party can claim that those rules might keep some

people from voting. The injunction poses special harms to Arizona’s own significant

interest in protecting the integrity of its elections. Absentee balloting is notoriously

the type of voting most subject to fraud, mistakes, and manipulation.

Arizona’s effort to protect the integrity of the ballot box accords with the

Constitution’s Elections Clause and with the federal statute. Because this Court is

likely to review and reverse the atextual, unprecedented preemption analysis below,

and because of the disruption to the State’s upcoming elections from that analysis,

the Court should enter a stay.

ARGUMENT

I. The NVRA does not preempt Arizona’s limits on mail-in voting.

When Congress passed the NVRA, it set a minimum national threshold for a

4

single process: “procedures to register to vote in elections for Federal office.” 52 U.S.C.

§ 20503(a). That’s it. The NVRA does not decide how people vote—the manner and

means of casting a ballot. Arizona’s law addresses a different problem, one that

Congress left open for the states: who can vote via a mail-in ballot. Under Arizona

law, “[a] person who has not provided satisfactory evidence of citizenship . . . and who

is eligible to vote only for federal offices is not eligible to receive an early ballot by

mail.” Ariz. Rev. Stat. Ann. § 16-127(A)(2). Neither the NVRA’s plain text nor its

broader purpose addresses how citizens vote, much less guarantees mail-in ballots.

The Constitution leaves those choices to the states, for the Elections Clause vests

state legislatures with “the duty” to set election rules, and Congress has “not ma[d]e

or alter[ed] such Regulations” in the context of mail voting. Moore v. Harper, 600 U.S.

1, 10 (2023); U.S. Const. art. I, §4. Because nothing in the NVRA says otherwise, that

should end the preemption analysis. The district court, however, egregiously erred by

taking pieces of the NVRA out of context and invoking a singular legislative purpose

to override Arizona’s mail-in ballot limits.

Time and again, this Court has explained that preemption “must stem from . . . a

valid statute enacted by Congress.” Kansas v. Garcia, 589 U.S. 191, 202 (2020)

(collecting cases). The text is what “communicates the scope of Congress’s preemptive intent.” Inter Tribal Council, 570 U.S. at 14. That is because the Supremacy

Clause requires a plausible textual basis in federal law to preempt state law. See CSX

Transp., Inc. v. Easterwood, 507 U.S. 658, 664 (1993) (“Evidence of pre-emptive

purpose is sought in the text and structure of the statute at issue.”). Mere “overlap”

5

or a related regulatory goal is not enough to push state law out. Garcia, 589 U.S. at

208, 211. Preemption presents a “straightforward textual question”: does the text of

federal law preempt state law? Inter Tribal Council, 570 U.S. at 9.

Since the NVRA’s enactment in 1993, apparently no court has held that the NVRA

federalizes any aspect of access to mail-in voting. Until now. The district court below

declared that under the NVRA, with one exception, States “may not limit absentee

voting.” App. 168. Unable to find an explicit textual hook in the statute, the district

court tried justifying its preemption analysis with an inference from a single line in

the NVRA and an appeal to a “brooding federal interest”1—voter participation—that

the NVRA addresses only in the context of registration.

First, in the district court’s view, since the NVRA allows States to decide whether

to require in-person voting after a person first submits a voter registration

application by mail, Congress prohibited all other in-person voting requirements.

App. 168. Second, the district court relied on cherry-picked statements from the

NVRA statement of its purposes—all of which relate to registration—to impliedly

preempt Arizona’s law about mail-in procedures. App. 168–69. As for the Ninth

Circuit, its two orders ignored this issue. App. 12 n.4; App. 45.

The preemption theory adopted below squeezes a regulatory elephant—federally

mandated mail-in ballots—into a mousehole of text. See Virginia Uranium, 587 U.S.

at 771 (opinion of Gorsuch, J.) (citing Whitman v. American Trucking Assns., Inc.,

531 U.S. 457, 468 (2001)). And it turns the NVRA’s national floor for voter

1 Virginia Uranium, Inc. v. Warren, 587 U.S. 761, 767 (2019) (opinion of Gorsuch, J.).

6

registration into a federal trump-card displacing state laws that regulate voting

procedures. The NVRA’s text does not countenance that extraordinary result.

Because the decisions below deviate from this Court’s repeated recent instructions to

adhere to established statutory interpretation principles in preemption cases, this

Court is likely to review and reverse—warranting a stay. A stay would properly

preserve a valid, important state law—and the NVRA’s non-preemptive status quo

over mail-in voting rules.

A. The NVRA’s text does not preempt Arizona’s mail-in rule.

For preemption, the text of a federal law must override state law according to the

rules of “standard English usage.” Garcia, 589 U.S. at 204. What matters, as in all

statutory interpretation questions, is the text’s “fairest reading,” in context. Inter

Tribal Council, 570 U.S. at 9–15. To decide that reading, this Court employs its

traditional tools of statutory interpretation. See ibid. Only after performing that

analysis does this Court decide whether the text preempts state law. See Garcia, 589

U.S. at 204 (looking for the text’s “ordinary” meaning to determine preemptive effect).

To begin, the NVRA does not expressly preempt Arizona’s mail-in rule. “Congress

may preempt state authority by so stating in express terms.” Pacific Gas & Elec. Co.

v. State Energy Res. Conservation & Dev. Comm’n, 461 U.S. 190, 203 (1983). The

NVRA requires that “notwithstanding any other Federal or State law, in addition to

any other method of voter registration provided for under State law, each State shall

establish procedures to register to vote in elections for Federal office” by an

application attached to a driver’s license application, by mail, and in person. 52 U.S.C.

§ 20503(a). By saying “notwithstanding any other . . . State law,” this provision does

7

expressly preempt some state laws. But the provision is about registration, not mailin voting. So all that the NVRA expressly preempts are state laws that purport to

prevent citizens from registering to vote in federal elections in one of the ways that

the NVRA requires.

This textual distinction between registration and voting is key. When Congress

passed the National Voter Registration Act, the deal it struck only standardized a

registration process. See 52 U.S.C. § 20503(a) (“establish[ing] procedures to register

to vote”). Every substantive section of the NVRA is expressly tied to “registration.”2

1. The NVRA’s “accept and use” requirement does not preempt

the mail-in rule.

The NVRA also requires that States “accept and use” the federal “mail voter

registration application.” Id. § 20505(a)(1); see Inter Tribal Council, 570 U.S. at 20.

While this requirement means that States must “accept the Federal Form as a

complete and sufficient registration application,” id. at 9, it does not mean that

federal registration qualifies voters to vote without any limits. By the NVRA’s own

terms, the Federal Form “may require only such identifying information” as state

officials need “to administer voter registration.” 52 U.S.C. § 20508(b)(1). Reading the

NVRA’s requirement to “accept and use” the Form to extend beyond registration and

mandate voting procedures has no stopping point. Every voting regulation—poll

hours, locations, early voting and absentee rules, identification rules—could be said

2 See 52 U.S.C. § 20503 (“procedures for voter registration”); id. § 20504 (“Simultaneous application

for voter registration”); id. § 20505 (“Mail registration”); id. § 20506 (“Voter registration agencies”); id.

§ 20507 (“administration of voter registration”). Indeed, when a senator tried to add provisions

addressing voting by mail for citizens overseas, its key sponsor defeated the amendment on the ground

that the bill “deals with voter registration, not voting.” 139 Cong. Rec. S2988-01 (daily ed. Mar. 17,

1993) (statement of Sen. Ford).

8

to “require” something more than the Federal Form of the registered citizen.

Though some argued below that this provision at least requires Federal Form

registrants to be treated as well as anyone else, there’s no text to support that rule.

Though registration must allow citizens to exercise the “fundamental right” “to vote,”

52 U.S.C. § 20501(a)(1), the district court here rejected the claim that Arizona’s

regulations “impose an undue burden on the right to vote.” App. 135–43. And there

is no fundamental right to mail-in voting. As courts have consistently held, all forms

of mail-in voting are a “privilege,” not a right. Luft v. Evers, 963 F.3d 665, 672 (CA7

2020); see also McDonald v. Bd. of Election Comm’rs of Chi., 394 U.S. 802, 809 (1969)

(upholding a state statute denying certain inmates mail-in ballots). Nor could it be

otherwise. A right of United States citizens must have content that does not vary.

But rules around mail-in voting, including access to it, vary by State, and always

have. Indeed, as discussed infra Part II, no-excuse mail-in voting was relatively rare

when the NVRA became law and is still not universal. It would be passing strange to

now learn that a provision in the exhaustively debated NVRA requires uniform mailin voting rules across the nation. And the right to vote is not a “one-way ratchet,” in

which every state law innovation with respect to voting is immediately incorporated

into the Constitution. Ohio Democratic Party v. Husted, 834 F.3d 620, 635 (CA6 2016).

Even odder, this reading of the “accept and use” language would require States to

give Federal Form users preferential treatment. Take a State that conditions access

to its permanent vote-by-mail list on registering in-person at the department of motor

vehicles, where identity verification procedures are more robust. Under this “most

9

favored nation” reading of the NVRA’s “accept and use” language, the State must let

Federal Form users on that list, but not state form registrants who register by mail

or at state public assistance agencies.

Other absurdities abound from this “most favored nation” reading. It would block

states from reserving early voting for registrants who submit proof of citizenship. It

would require states to accept the Federal Form as an application for a mail-in ballot

if they treat other registration applications in that manner. It would prevent states

from offering more polling locations to facilitate voting by the larger number of

persons eligible to vote for both state and federal offices who must complete longer

ballots. It could even block states from adding personnel to polling places dedicated

to expediting the processing of non-Federal-only voters. But the NVRA says nothing

about any of these topics.

In the end, there is no indication in the NVRA or anywhere else that Congress

intended to intrude so deeply into states’ administration of their own elections. There

is no textual or historical support for a reading that specially privileges Federal Form

registrants. And that reading is especially implausible of other statutory provisions

that uniquely burden those registrants. See 52 U.S.C. § 21083(b) (obligating States

to require proof of identity from Federal Form users registering by mail, which is not

required of voters who register in person). Because the NVRA’s text goes “no farther”

than establishing voter registration requirements, that is where the statute’s

preemption ends. Ex parte Siebold, 100 U.S. 371, 386 (1879).

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2. The NVRA’s confirmation that States may limit first-time

voters does not preempt Arizona’s mail-in rule.

Though several parties below relied on the NVRA’s “accept and use” language to

argue preemption—and their arguments are rebutted above—the district court did

not directly address that language or rely on it for its preemption holding. Instead, it

found “direct[] preempt[ion]” by negative implication from 52 U.S.C. § 20505(c), which

says that “a State may by law require a” first-time voter “to vote in person if” the

person registered to vote by mail, unless federal law otherwise gives the person the

right not to vote in person. App. 168–69. In the district court’s view, because Congress

allowed States to require in-person voting after a person registered to vote via mail,

that can be the only time States could require in-person voting. See App. 168. In so

holding, the district court departed from the textual analysis that this Court

mandates. See, e.g., Garcia, 589 U.S. at 204; Inter Tribal Council, 570 U.S. at 9–13.

The district court’s transmogrification of a permissive provision into a prohibitory

one is flawed. To start, the district court is wrong to characterize this analysis as

“direct[]” preemption, if it meant express preemption. App. 169. Any preemption by

“inference” (App. 168) would be implied preemption, specifically implied conflict

preemption. Geier v. Am. Honda Motor Co., 529 U.S. 861, 884 (2000). Under this

branch, “[w]here state and federal law directly conflict, state law must give way.”

PLIVA, Inc. v. Mensing, 564 U.S. 604, 617 (2011) (internal quotation marks omitted).

But there is no contradiction in confirming that States may require first-time

voters to vote in-person and States requiring some returning voters to vote in-person.

The district court relied on the expressio unius canon to hold that the statute’s

11

permission to restrict first-time voters “impl[ies] that a state may not limit absentee

voting outside of these prescribed circumstances.” App. 168. But as this Court has

explained, “the expressio unius canon does not apply unless it is fair to suppose that

Congress considered the unnamed possibility and meant to say no to it.” Marx v. Gen.

Revenue Corp., 568 U.S. 371, 381 (2013) (cleaned up). Here, there is no reason to think

that Congress intended to quietly preclude mail-in voting rules across the nation.

The Constitution’s default is that States can regulate elections unless Congress

explicitly displaces state rules. See U.S. Const. art. I, § 4. Subsection (c) of § 20505

confirms States’ authority to require first-time voters to vote by mail, except when

those voters have separate federal rights to vote other than in person. On its own

terms, subsection (c) only concerns “[f]irst-time voters.” 52 U.S.C. § 20505(c). This

explicit limit does not say anything about repeat voters. And given how common and

well-known to policymakers in-person voting requirements were at the time of the

NVRA’s enactment, “[i]f Congress thought” they “posed an obstacle to its objectives,

it surely would have enacted an express pre-emption provision” saying so. Wyeth v.

Levine, 555 U.S. 555, 574 (2009). “Its silence on the issue, coupled with its certain

awareness of the prevalence of state [regulation]”—a prevalence emphasized infra

Part II—“is powerful evidence that Congress did not intend” subsection (c) “to be the

exclusive” allowance for in-person voting. Id. at 575. On this point, the district court

got it backwards. According to the district court, “[h]ad Congress intended to permit

states that allow absentee voting to require in-person voting under additional

circumstances,” “it could have said so.” App. 168. But the more obvious point is that

12

had Congress intended to preclude commonplace regulations at the heart of states’

authority to regulate the manner of elections, it would have been far simpler to just

say so rather than hide its intent in negative implications. There is no reason to think

that Congress regulates by cypher.

As for the argument that subsection (c) would be surplusage on this reading, not

every word of a statute creates new authorities or establishes new prohibitions. See

Wisconsin Pub. Intervenor v. Mortier, 501 U.S. 597, 612–13 (1991) (recognizing that

when Congress did not comprehensively regulate an area, states could regulate,

despite an explicit provision saying states could regulate in a few areas). Statutory

language does not become mere surplusage because it merely confirms the existence

of preexisting authorities or prohibitions. “[R]edundancies are common in statutory

drafting—sometimes in a [legislative] effort to be doubly sure, sometimes because of

[a legislature’s] inadvertence or lack of foresight, or sometimes simply because of the

shortcomings of human communication.” Barton v. Barr, 590 U.S. 222, 239 (2020);

see also King v. Burwell, 576 U.S. 473, 502 (2015) (Scalia, J., dissenting) (“Lawmakers

sometimes repeat themselves—whether out of a desire to add emphasis, a sense of

belt-and-suspenders caution, or a lawyerly penchant for doublets (aid and abet, cease

and desist, null and void).”); id. at 491–92 (majority opinion).

Other principles of statutory interpretation confirm the point. If Congress was

actually uniquely concerned about voters who register by mail, and wanted to

mandate a sea-change for the major question of mail-in voting, it would not sneak it

into a “backwater” provision of a voter registration statute. W. Virginia v. EPA, 597

13

U.S. 697, 730 (2022). The district court focused on a single minor provision about

first-time voters, offering a bank-shot inference that this single sentence pushes out

state laws requiring in-person voting. But nothing in the text or history of the NVRA,

a hotly debated law that was vetoed by one president before it became law, suggests

that Congress viewed the statute as achieving this result. Cf. FDA v. Brown &

Williamson Tobacco Corp., 529 U.S. 120, 147 (2000).

The district court’s reading would also produce absurdities. Importantly,

registration is not always a continuous process. Some people voluntarily unregister

themselves. Others lose their status because they move away or are convicted of a

felony. According to the district court, however, subsection (c) requires States to

permit any returning voters who register by mail to vote by mail, from day one of

their return, regardless of why they lost their registration status or for how long.

States could not, for example, ask someone who suddenly re-appears in a state to reappear at a polling location to prove that they in fact live physically within the state.

Nothing in the NVRA’s text or history supports this result.

Another odd aspect of the district court’s negative inference approach is that any

inference would have to be limited to access to mail-in voting. Contrary to the broad

reading of “accept and use” addressed above, the negative inference here would leave

states free to preclude Federal Form registrants from accessing things like

permanent vote-by-mail lists, early in-person voting, and a host of other votingrelated privileges. There is no reason to think that Congress was uniquely focused on

States excluding Federal Form registrants from mail-in voting while ignoring other

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types of voting-related distinctions.

If there were any doubt that Congress had no intent to regulate mail-in voting,

the legislative history points the same way. That history establishes that Congress

intended subsection (c) to assuage concerns regarding “the fraud associated with mail

registration,” particularly States’ ability to confirm the identity of registrants. S. Rep.

103-6, at 13, 54 (1993). This explains why the provision applies only to voters who

register by mail. Congress did not have similar concerns about fraud with respect to

other people who registered by other means. At the time, approximately twenty states

did not permit registration by mail. Id. at 42. In those states, the NVRA’s directive to

“accept and use” applications submitted through the mail would have eliminated

their ability to check the identification of at least some applicants at the time of

registration. In this context, subsection (c) ensured that states could “ask for

identification” at the polls, even if they could no longer do so at the registrar’s office.

Id. at 54. It thus removed any “doubts” about the States’ continued ability to enforce

their at-the-time of registration identification requirements, notwithstanding the

need to comply with the NVRA’s liberalized registration rules. Inter Tribal Council,

570 U.S. at 17–18. It says nothing about States’ ability to enforce other election

integrity rules, including identification rules they may wish to enforce at the polls at

each election beyond the first.

In sum, the district court wrongly interpreted the NVRA, contrary to its text and

the Elections Clause’s default rule. Unlike the Ninth Circuit’s rubber-stamp, this

Court should not “abdicat[e]” its “proper role” by “off-loading to lower courts the final

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word on whether to green-light” or preempt Arizona’s in-person voting requirements.

Labrador v. Poe, 144 S. Ct. 921, 930 (2024) (Kavanaugh, J., concurring).

B. The NVRA’s purposes do not preempt Arizona’s mail-in rule.

The district court’s other rationale was that “obstacle preemption bars the

statute’s enforcement” because the statute “impedes Arizona’s ‘promot[ion] of the

right’ to vote.” App. 169 (quoting 52 U.S.C. § 20501(a)). The district court believed

that “the findings and purposes included in the NVRA reflect an intent to increase

voter turnout.” Ibid. But “[a] sound preemption analysis cannot be as simplistic as

that.” Virginia Uranium, 587 U.S. at 778 (opinion of Gorsuch, J.). The district court’s

use of selective purpose statements about registration to assume that federal law

single-mindedly pursues a goal about voting and thus preempts state law that might

pursue overlapping goals contradicts this Court’s precedents.

In the preemption analysis, “the federal restrictions or rights that are said to

conflict with state law must stem from either the Constitution itself or a valid statute

enacted by Congress.” Garcia, 589 U.S. at 202. “[P]reemption cannot be based on ‘a

freewheeling judicial inquiry into whether a state statute is in tension with federal

objectives.” Ibid. (quoting Chamber of Com. of U.S. v. Whiting, 563 U.S. 582, 607

(2011)). “[S]uch an endeavor would undercut the principle that it is Congress rather

than the courts that pre-empts state law.” Whiting, 563 U.S. at 607 (internal

quotation marks omitted). For that reason, this Court’s “precedents establish that a

high threshold must be met if a state law is to be preempted for conflicting with the

purposes of a federal Act.” Ibid. (cleaned up). After all, “no law pursues its purposes

at all costs.” Pulsifer v. United States, 601 U.S. 124, 152 (2024) (cleaned up).

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The district court’s analysis here exemplifies the pitfalls of a purposes-based

preemption approach. The NVRA expresses four purposes:

(1) to establish procedures that will increase the number of eligible

citizens who register to vote in elections for Federal office;

(2) to make it possible for Federal, State, and local governments to

implement this chapter in a manner that enhances the participation

of eligible citizens as voters in elections for Federal office;

(3) to protect the integrity of the electoral process; and

(4) to ensure that accurate and current voter registration rolls are

maintained.

52 U.S.C. § 20501(b). It also expresses Congress’s “find[ing]” that “discriminatory and

unfair registration laws and procedures can have a direct and damaging effect on

voter participation in elections for Federal office and disproportionately harm voter

participation by various groups.” Id. § 20501(a).

None of these can show preemption here, even putting aside that there appears to

be no record evidence that reserving access to the vote-by-mail system affects voter

turnout. See App. 138. These purpose statements are all tied to registration. They do

not speak to increasing ballot access directly, much less guaranteeing mail-in ballots

for all voters. No doubt, the statute broadly seeks to increase registration and even

“enhance[d]” “participation,” though only via other provisions limited to registration.

And the statute also speaks “of eligible citizens,” balancing the increased registration

goal against a countervailing purpose of “protect[ing] the integrity of the electoral

process.” 52 U.S.C. § 20501(b). The district court ignored the focus on registration and

countervailing purposes, elevating the remaining statements of purpose above the

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operative text of the statute.

In many ways and in many cases, this Court has squarely rejected that approach

to interpretation: “No statute pursues a single policy at all costs, and [the courts] are

not free to rewrite this statute (or any other) as if it did.” Bartenwerfer v. Buckley,

598 U.S. 69, 81 (2023).3 What’s more, the district court’s logic has no stopping point.

Under that logic, the NVRA would preempt not only a commonplace mail-in voting

rule like this one, but nearly every law that regulates elections. Many states impose

photographic identification requirements on voters or invalidate ballots that do not

arrive with required indications of validity, like witness certifications and secrecy

envelopes. The district court’s rule would seemingly preempt these laws, along with

a myriad of other rules and regulations States impose on voting, because they might

have a negative effect on voter turnout.

“Always, the question [courts] face is how far Congress has gone in pursuing one

policy or another.” Harrington v. Purdue Pharma LP, 144 S. Ct. 2071, 2084 (2024).

Here, the district court’s maximalist reading disregards how the statute advances its

registration-centered purposes. And it disregards other statements of purpose that

point the opposite direction. There is no reason to think that one purpose statement

about registration implies preemption of all the mail-in vote regulations across the

nation. “The mere fact that state laws like the [Arizona] provisions at issue overlap

3 See also, e.g., Luna Perez v. Sturgis Pub. Sch., 598 U.S. 142, 150 (2023) (“It is quite mistaken to

assume, too, that any interpretation of a law that does more to advance a statute’s putative goal must

be the law”; “[l]aws are the product of compromise.” (cleaned up)); Rodriguez v. United States, 480 U.S.

522, 526 (1987) (“Deciding what competing values will or will not be sacrificed to the achievement of a

particular objective is the very essence of legislative choice—and it frustrates rather than effectuates

legislative intent simplistically to assume that whatever furthers the statute's primary objective must

be the law.”); see generally Virginia Uranium, 587 U.S. at 778–79.

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to some degree with federal [voter registration] provisions does not even begin to

make a case for conflict preemption.” Garcia, 589 U.S. at 211.

*

*

*

As all this shows, the preemption analysis below is hard to describe, much less

defend. The idea seems to be that three detached NVRA provisions, each incapable of

preemption on its own, together form a preemptive mash tailored to this case—and

inexplicable otherwise. According to this analysis, the purpose statement suggests

preemption of any regulation that might decrease voter turnout, but the “accept and

use” clause limits that preemptive effect to Federal Form voters and subsection (c)

further limits it to mail-in voting. That some qualification is needed at every stage to

make the argument plausible undercuts the notion that these provisions were meant

to have preemptive force. And each qualification is unexplainable as a matter of

congressional intent or commonsense. Neither the district court nor the challengers

made any effort to rationalize these three components into any coherent scheme

Congress might have intended either to protect Federal Form registrants generally

or to regulate mail-in voting. The district court egregiously erred in enjoining

Arizona’s mail-in rule on this vague amalgamation of non-preemptive provisions.

II. Allowing the decision below to remain in effect would create massive

uncertainty nationwide and threaten the integrity of Arizona’s elections.

Letting the unprecedented approach to preemption taken by the district court

keep Arizona’s law enjoined this year would cast doubt on commonplace absentee

voting rules across the nation. It would also undermine Arizona’s critical interest in

protecting the integrity of its elections by regulating mail-in voting, which is uniquely

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vulnerable to manipulation.

A. Declining to issue a stay would create significant uncertainty about

mail-in vote rules long applied in many States.

Since the NVRA’s enactment in 1993, amici are unaware of any decision using it

to preempt a state law that regulates access to different methods of voting—until

now. And that is not because such state laws are innovations. Far from it. In 1993,

many states reserved access to mail-in voting to those who may be absent from the

jurisdiction or were too ill or disabled to make it to the polls.4 Only eleven states

permitted no-excuse in-person early voting.5 States have often reserved access to

early voting systems to the elderly or those with disabilities.6 Such laws are still

commonplace throughout the country.7 What’s more, courts have routinely upheld

these laws against a variety of legal challenges. See, e.g., Texas Democratic Party v.

Abbott, 961 F.3d 389 (CA5 2020); Tully v. Okeson, 977 F.3d 608 (CA7 2020).

The logic of the decision below, however, would seemingly doom all these

longstanding state laws that require additional information and excuses to vote

absentee, at least as applied to Federal Form registrants. It would also seemingly

doom this Court’s own precedent in McDonald, which upheld a state statute limiting

voting privileges of inmates, who may very well have registered through the mail,

and is relied on today. 394 U.S. at 809; see Tully v. Okeson, 78 F.4th 377, 378 (CA7

4 J. Fortier, Absentee and Early Voting, Trends, Promises, and Perils 26 (Am. Enter. Inst. Press 2006).

5 D. Biggers & M. Hanmer, Who Makes Voting Convenient? Explaining the Adoption of Early and No-

Excuse Absentee Voting in the American States, 15 State Pol. & Pol’y Q. 192, 199 (2015),

https://tinyurl.com/3rvkjb5c.

6 R. Stein & P. Garcia-Monet, Voting Early but Not Often, 78 Soc. Sci. Q. 657, 657 (1997).

7 National Conference of State Legislatures, Table 2: Excuses to Vote Absentee (Jan. 3, 2024),

https://perma.cc/R955-ZGG8; see, e.g., Conn. Gen. Stat. § 9-135; Del. Code tit. 15, § 5502; N.Y. Elec.

Law § 8-400.

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2023); Texas Democratic Party v. Abbott, 978 F.3d 168, 185 (CA5 2020).

The sheer novelty of the district court’s holding is compelling evidence that it is

wrong. See Free Enter. Fund v. Pub. Co. Acct. Oversight Bd., 561 U.S. 477, 505 (2010)

(“Perhaps the most telling indication of” error “is the lack of historical precedent.”).

It is also a compelling reason for this Court to step in and avoid the immediate

uncertainty that allowing the injunction to remain in effect would create in all these

States with established absentee ballot rules. The district court’s broad preemption

approach would effectuate a revolution in election law. For more than forty years,

plaintiffs challenging voting rules and regulations have had to establish that their

burdens were not outweighed by state goals and objectives. See Anderson v.

Celebrezze, 460 U.S. 780 (1983); Burdick v. Takushi, 504 U.S. 428 (1992). Under the

district court’s holding, however, this nuanced analysis becomes unnecessary.

Challengers need only show that a state regulation might fail to “increase voter

turnout” or “promote the exercise” of the right to vote, and voilà, obstacle preemption

precludes the state regulation. On this reading, the NVRA would swallow the entirety

of the jurisprudence surrounding the federal right to vote, effectively overturning

many of this Court’s decisions. The rights of voters to participate in elections run

according to the rules of their States—and safeguarded by those rules—are too

important to let this uncertainty reign. The Court should grant a stay.

B. Declining to issue a stay would undermine Arizona’s important

interest in protecting the integrity of its elections.

Last and on a related note, Arizona has a profound responsibility to ensure that

only U.S. citizens vote in its elections. States “indisputably [have] a compelling

21

interest in preserving the integrity of [their] election process.” Purcell v. Gonzalez,

549 U.S. 1, 4 (2006) (per curiam); see Burson v. Freeman, 504 U.S. 191, 199 (1992)

(“[A] State has a compelling interest in ensuring that an individual’s right to vote is

not undermined by fraud in the election process.”). Laws designed to protect the

integrity of the election, at any stage in the process, fulfill a critical policy goal:

instilling public confidence in the electoral process, which “encourages citizen

participation in the democratic process.” Crawford v. Marion County Election Bd.,

553 U.S. 181, 197 (2008).

As this Court recently explained in the context of absentee ballots, a “State may

take action to prevent election fraud without waiting for it to occur and be detected

within its own borders.” Brnovich v. Democratic Nat’l Committee, 594 U.S. 647, 686

(2021). As Judge Posner explained, historically “[v]oting fraud [has been] a serious

problem in U.S. elections generally,” sometimes “facilitated by absentee voting.”

Griffin v. Roupas, 385 F.3d 1128, 1130–31 (CA7 2004). Judge Posner warned that

absentee voters “are more prone to cast invalid ballots than voters who, being present

at the polling place, may be able to get assistance from the election judges if they

have a problem with the ballot.” Id. at 1131.

Mail-in voting creates more links in the chain between a ballot being created and

a ballot being cast. This creates more opportunities for honest mistakes and political

chicanery, and partisan actors of all political stripes use this increased opportunity

to engage in fraud and intimidation to gain an electoral advantage. For example, in

the 2018 race for the North Carolina’s ninth congressional district, “the election

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results were overturned by the state after an investigation into an absentee ballot

operation on [the Republican candidate’s] behalf suggested that” ballots had been

“improperly collected and possibly tampered with” by a political operative—resulting

in a new election.8 In an Arizona example, the former Democrat Mayor of San Luis,

Guillermina Fuentes, pleaded guilty in 2022 to ballot harvesting charges.9 Fuentes

was a political figure in her community and worked as a political consultant.10 Using

that influence, Fuentes persuaded voters to allow her to collect their ballots and, in

some instances, fill out ballots on behalf of the voters.11 Such activity is prohibited

under Arizona law, see Ariz. Rev. Stat. § 16-1005, and it was possible only because of

the opportunities presented by mail-in and no-excuse absentee balloting.

As is evident from the above examples, voting and election fraud—especially with

respect to absentee ballots—remains a problem that States have a duty to prevent.

Again, the NVRA itself recognizes the fraud potential of mail-in votes, with its

confirmatory provision that States may require some voters to vote in-person. 52

U.S.C. § 20505(c). Arizona’s mail-in rule is another effort to address this same

problem and fulfill the State’s vital interest in protecting the integrity of its elections.

Letting that rule remain enjoined by function of unreasoned, see-sawing Ninth

Circuit panel orders undermines that important interest.

8 R. Gonzales, North Carolina GOP Operative Faces New Felony Charges That Allege Ballot Fraud,

NPR (July 30, 2019), https://perma.cc/VU86-6G8J.

9 B. Christie, Former San Luis Mayor Pleads Guilty to Illegally Collecting Early Ballots in 2020

Primary, AZCentral (June 2, 2022), https://perma.cc/ML8R-P6EW.

10 Guillermina Fuentes, Voter Fraud Report, The Heritage Foundation (last visited Aug. 12, 2024)

https://perma.cc/3DLB-HMS4.

11 Ibid.

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CONCLUSION

For these reasons, the Court should grant a stay.

Respectfully submitted,

CHRISTOPHER E. MILLS

Counsel of Record

Spero Law LLC

557 East Bay Street #22251

Charleston, SC 29413

(843) 606-0640

cmills@spero.law

Counsel for Amici Curiae

AUGUST 14, 2024

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