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

Supreme Court briefAug 15, 2024

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No. 24A164

In the Supreme Court of the United States

___________________________________________

REPUBLICAN NATIONAL COMMITTEE, ET. AL.,

Applicants,

MI FAMILIA VOTA, ET. AL.,

Respondents.

___________________________________________

On Emergency Application for Stay Pending Appeal from the

U.S. Court of Appeals for the Ninth Circuit

___________________________________________

To the Honorable Elena Kagan,

Associate Justice of the United States and

Circuit Justice for the Ninth Circuit

___________________________________________

AMICUS CURIAE BRIEF OF IMMIGRATION REFORM LAW

INSTITUTE IN SUPPORT OF APPLICANTS

___________________________________________

CHRISTOPHER J. HAJEC

Immigration Reform Law Institute

25 Massachusetts Ave. NW, Suite 335

Washington, DC 20001

(202) 232-5590

chajec@irli.org

LAWRENCE J. JOSEPH

Counsel of Record

1250 Connecticut Ave. NW, Suite 700-1A

Washington, DC 20036

(202) 355-9452

lj@larryjoseph.com

Counsel for Movant and Amicus Curiae

TABLE OF CONTENTS

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

Amicus Curiae Brief in Support of Applicants ............................................................. 1

Identity and Interests of Amicus Curiae ...................................................................... 1

Introduction ................................................................................................................... 1

Procedural Background ...................................................................................... 2

Jurisdictional Background.................................................................................. 2

Substantive Legal Background .......................................................................... 4

Factual Background ............................................................................................ 6

Standard of Review ........................................................................................................ 7

Summary of Argument .................................................................................................. 8

Argument ....................................................................................................................... 9

The grant of a writ of certiorari is likely. ........................................................... 9

II.

Applicants are likely to prevail ........................................................................ 10

The courts below lack Article III jurisdiction over the

Non-Federal Plaintiffs’ actions. ............................................................. 10

The Non-Federal Plaintiffs lack associational

standing. ...................................................................................... 11

The Non-Federal Plaintiffs lack their own standing. ................ 13

Havens is inapposite here for the same

reasons as in Alliance for Hippocratic

Medicine. ........................................................................... 13

Res judicata principles do not provide

standing for the Non-Federal Complainants. .................. 14

HB 2492 complies with federal law. ...................................................... 15

The States have plenary power over voter

qualifications................................................................................ 15

The NVRA does not preempt HB 2492. ...................................... 16

HB 2492 does not conflict with the NVRA’s

requirement that States accept and use the

Federal Form..................................................................... 17

States retain the power to create and use

their own mail-in voter registration forms

under the NVRA. .............................................................. 18

NVRA does not prevent the States from

purging ineligible voters from the voter rolls. ................. 19

HB 2492 does not violate the Materiality Clause. ..................... 20

III.

The Anderson-Burdick test does not apply, but HB

2492 meets the test in any event. ............................................... 22

Applicants will suffer irreparable harm, and the equities favor a

stay. ................................................................................................................... 24

Conclusion .................................................................................................................... 25

TABLE OF AUTHORITIES

CASES

Acevedo v. Cook Cnty. Officers Electoral Bd.,

925 F.3d 944 (7th Cir. 2019) ................................................................................ 22

Allen v. Wright,

468 U.S. 737 (1984) ................................................................................................ 3

Anderson v. Celebrezze,

460 U.S. 780 (1983) ............................................................................... 9, 13, 22-24

Andino v. Middleton,

141 S.Ct. 9 (2020) ................................................................................................... 9

Ariz. Democratic Party v. Hobbs,

18 F.4th 1179 (9th Cir. 2021) .............................................................................. 22

Ariz. Dream Act Coalition v. Brewer,

855 F.3d 957 (9th Cir. 2017) .................................................................................. 1

Arizona v. California,

530 U.S. 392 (2000) .............................................................................................. 14

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

570 U.S. 1 (2013) .................................................................. 5-6, 9-10, 16-19, 21-23

Barnes v. Outlaw, 192

Ariz. 283 (1998) .................................................................................................... 14

Basic Inc. v. Levinson,

485 U.S. 224 (1988) .............................................................................................. 20

Buckley v. Am. Constitutional Law Found.,

525 U.S. 182 (1999) .............................................................................................. 16

Burdick v. Takushi,

504 U.S. 428 (1992) ............................................................................... 9, 13, 22-24

Burson v. Freeman,

504 U.S. 191 (1992) .............................................................................................. 24

Chaney Bldg. Co. v. Tucson,

148 Ariz. 571 (1986) ............................................................................................. 14

Chevron, U.S.A., Inc. v. NRDC, Inc.,

467 U.S. 837 (1984) .............................................................................................. 22

Clapper v. Amnesty Int’l USA,

568 U.S. 398 (2013) .................................................................................. 3-4, 11-13

Clinton v. City of New York,

524 U.S. 417 (1998) .............................................................................................. 24

Corbett v. Manorcare of Am. Inc.,

213 Ariz. 618 (App. 2006) .................................................................................... 15

Crawford v. Marion Cty. Election Bd.,

553 U.S. 181 (2008) ........................................................................................ 16, 23

DaimlerChrysler Corp. v. Cuno,

547 U.S. 332 (2006) ................................................................................................ 3

Davis v. Fed. Election Comm’n,

554 U.S. 724 (2008) ................................................................................................ 3

Dudum v. Arntz,

640 F.3d 1098 (9th Cir. 2011) .............................................................................. 22

Ex parte Siebold,

100 U.S. 371 (1880) .............................................................................................. 21

FBI v. Fikre,

601 U.S. 234 (2024) .......................................................................................... 3, 11

Foley v. Connelie,

435 U.S. 291 (1978) .............................................................................................. 15

Food & Drug Admin. v. All. for Hippocratic Med.,

602 U.S. 367 (2024) ............................................................................... 3, 10, 13-14

FW/PBS, Inc. v. City of Dallas,

493 U.S. 215 (1990) ................................................................................................ 8

Gonzales v. Oregon,

546 U.S. 243 (2006) .............................................................................................. 21

Hall v. Hall,

584 U.S. 59 (2018) ............................................................................................ 4, 11

Havens Realty Corp. v. Coleman,

455 U.S. 363 (1982) .............................................................................................. 13

Hawaii v. Trump,

859 F.3d 741 (9th Cir. 2017) .................................................................................. 1

Hollingsworth v. Perry,

558 U.S. 183 (2010) .................................................................................... 7, 10, 25

iii

Hunt v. Washington Apple Advertising Comm’n,

432 U.S. 333 (1977) ................................................................................................ 4

Husted v. A. Philip Randolph Inst.,

584 U.S. 756 (2018) .............................................................................................. 16

Illinois Bd. of Elections v. Socialist Workers Party,

440 U.S. 173 (1979) .............................................................................................. 15

In re Kieslich,

258 F.3d 968 (9th Cir. 2001) ................................................................................ 11

Insurance Corp. of Ireland, Ltd. v. Compagnie des Bauxites de Guinee,

456 U.S. 694 (1982) .......................................................................................... 8, 11

Kowalski v. Tesmer,

543 U.S. 125 (2004) ................................................................................................ 4

Lambrix v. Singletary,

520 U.S. 518 (1997) .............................................................................................. 10

Lawrence v. Chater,

516 U.S. 163 (1996) .............................................................................................. 10

League of Women Voters of the United States v. Newby,

838 F.3d 1 (D.C. Cir. 2016) .................................................................................. 25

Lewis v. Casey,

518 U.S. 343 (1996) ................................................................................................ 3

Loper Bright Enters. v. Raimondo,

144 S.Ct. 2244 (2024) ........................................................................................... 22

Lujan v. Defenders of Wildlife,

504 U.S. 555 (1992) ................................................................................................ 3

Massachusetts v. Envtl. Prot. Agency,

549 U.S. 497 (2007) ................................................................................................ 3

Matter of C-T-L-,

25 I. & N. Dec. 341 (B.I.A. 2010) ........................................................................... 1

Matter of Silva-Trevino,

26 I. & N. Dec. 826 (B.I.A. 2016) ........................................................................... 1

Mecinas v. Hobbs,

30 F.4th 890 (9th Cir. 2022) ................................................................................ 24

Montana v. United States,

440 U.S. 147 (1979) .............................................................................................. 15

Munro v. Socialist Workers Party,

479 U.S. 189 (1986) .............................................................................................. 24

Muskrat v. United States,

219 U.S. 346 (1911) ............................................................................................. 2-3

Oregon v. Mitchell,

400 U.S. 112 (1970) .............................................................................................. 16

Pennsylvania v. New Jersey,

426 U.S. 660 (1976) ......................................................................................... 13-14

Purcell v. Gonzalez,

549 U.S. 1 (2006) .............................................................................................. 9, 16

Renne v. Geary,

501 U.S. 312 (1991) .......................................................................................... 8, 10

Republican Nat’l Comm. v. Democratic Nat’l Comm.,

589 U.S. 423 (2020) ................................................................................................ 9

Save Jobs USA v. U.S. Dep’t of Homeland Sec.,

942 F.3d 504 (D.C. Cir. 2019) ................................................................................ 1

Spencer v. Kemna,

523 U.S. 1 (1998) .............................................................................................. 3, 11

State v. Whelan,

208 Ariz. 168 (App. 2004) .................................................................................... 15

Steel Co. v. Citizens for a Better Env’t.,

523 U.S. 83 (1998) ....................................................................................... 8, 10-11

Storer v. Brown,

415 U.S. 724 (1974) .............................................................................................. 15

Summers v. Earth Island Inst.,

555 U.S. 488 (2009) ..................................................................................... 4, 11-12

Timmons v. Twin Cities Area New Party,

520 U.S. 351 (1997) .............................................................................................. 23

Town of Chester v. Laroe Estates, Inc.,

581 U.S. 433 (2017) .......................................................................................... 4, 11

Trump v. Hawaii,

585 U.S. 667 (2018) ................................................................................................ 1

Trump v. Wis. Elections Comm’n,

983 F.3d 919 (7th Cir. 2020) ................................................................................ 24

United States v. Bass,

404 U.S. 336 (1971) .............................................................................................. 21

United States v. Bathgate,

246 U.S. 220 (1918) .............................................................................................. 21

United States v. Gradwell,

243 U.S. 476 (1917) .............................................................................................. 21

United States v. Texas,

143 S.Ct. 51 (2022) ............................................................................................... 10

United States v. Texas,

579 U.S. 547 (2016) ................................................................................................ 1

Wesberry v Sanders,

376 U.S. 1 (1964) .................................................................................................. 15

Winter v. Natural Res. Def. Council, Inc.,

555 U.S. 7 (2008) .............................................................................................. 7, 10

Wisconsin Legislature v. Wisconsin Elections Comm’n,

595 U.S. 398 (2022) .............................................................................................. 10

Wittman v. Personhuballah,

578 U.S. 539 (2016) ................................................................................................ 3

Yick Wo v. Hopkins,

118 U.S. 356 (1886) .............................................................................................. 15

Young v. Fordice,

520 U.S. 273 (1997) .............................................................................................. 18

STATUTES

U.S. CONST. art. I ......................................................................................................... 16

U.S. CONST. art. I, § 2, cl. 2.................................................................. 4-6, 16, 18, 20-23

U.S. CONST. art. I, § 4, cl. 1.......................................................................... 5, 16, 21, 24

U.S. CONST. art. I, § 4, cl. 2................................................................................ 5, 16, 21

U.S. CONST. art. II.......................................................................................................... 5

U.S. CONST. art. II, § 1, cl. 4 .................................................................................... 5, 24

U.S. CONST. art. III ...................................................................................... 2-4, 8-11, 14

U.S. CONST. art. III, § 2 ................................................................................................. 3

U.S. CONST. art. VI, cl. 2 .............................................................................................. 16

U.S. CONST. amend. XVII, cl. 2...................................................................................... 5

42 U.S.C. § 1988(b) ...................................................................................................... 11

52 U.S.C. § 10101(a)(2)(B) ........................................................................................... 11

National Voter Registration Act,

52 U.S.C. §§ 20501-20511 .................................................................... 5-6, 9, 16-23

52 U.S.C. § 20501(b)(3) .................................................................................................. 5

52 U.S.C. § 20505 ..................................................................................................... 6, 16

52 U.S.C. § 20505(a)(1) ........................................................................................ 5, 7, 17

52 U.S.C. § 20505(a)(2) ................................................................................................ 18

52 U.S.C. § 20507(a)(4) ................................................................................................ 19

52 U.S.C. § 20507(c) ..................................................................................................... 19

52 U.S.C. § 20507(d) .................................................................................................... 20

52 U.S.C. § 20508(b)(1) ................................................................................................ 18

52 U.S.C. § 20508(b)(2) ................................................................................................ 19

52 U.S.C. § 20508(b)(3) ................................................................................................ 19

52 U.S.C. § 20510(c) ..................................................................................................... 11

Civil Rights Act of 1964,

PUB. L. NO. 88-352, 78 Stat. 241.......................................................... 5-7, 9, 20-22

Civil Rights Act of 1964 § 101(a),

PUB. L. NO. 88-352, § 101(a), 78 Stat. 241 .......................................................... 20

A.R.S. § 16-101(A)(1) ..................................................................................................... 6

A.R.S. § 16-121.01(C) ............................................................................................... 6, 17

A.R.S. § 16-121.01(D) ................................................................................................... 18

A.R.S. § 16-121.01(D)(1)-(5) ......................................................................................... 18

A.R.S. § 16-121.01(E) ................................................................................................... 18

A.R.S. § 16-165 ............................................................................................................... 6

A.R.S. § 16-165(K) .......................................................................................................... 6

A.R.S. § 16-579(A)(1) ..................................................................................................... 6

2022 Ariz. Laws ch. 99 (House Bill 2492) ............................ 6-7, 9, 12, 15-17, 20, 22-23

2022 Ariz. Laws ch. 370 (House Bill 2243) ................................................................... 6

RULES AND REGULATIONS

FED. R. APP. P. 29(a)(4)(E) ............................................................................................. 1

FED. R. CIV. P. 42(a) ....................................................................................................... 4

S.Ct. Rule 37.6 ............................................................................................................... 1

OTHER AUTHORITIES

BLACK’S LAW DICTIONARY (11th ed. 2019) ................................................................... 20

Gloria J. Browne-Marshall, THE VOTING RIGHTS WAR: THE NAACP AND THE

ONGOING STRUGGLE FOR JUSTICE (2016) .......................................................... 21

vii

Richard C. Chen, Summary Dispositions as Precedent, 61 WM. & MARY L. REV.

691 (2020) .......................................................................................................... 10

Pamela S. Karlan, Discrete and Relational Criminal Representation: The

Changing Vision of the Right to Counsel, 105 HARV. L. REV. 670 (1992)........ 20

RESTATEMENT (SECOND) OF JUDGMENTS ¶ 28......................................................... 14-15

viii

AMICUS CURIAE BRIEF IN SUPPORT OF APPLICANTS

Amicus Curiae Immigration Reform Law Institute1 (“IRLI”) respectfully

submits that the Circuit Justice or the full Court should grant the emergency

application to stay the district court’s judgment. This Court is likely to grant a

petition for a writ of certiorari, the Applicants are likely to prevail, and they will

suffer irreparable harm without a stay.

IDENTITY AND INTERESTS OF AMICUS CURIAE

IRLI is a nonprofit 501(c)(3) public-interest law firm incorporated in the

District of Columbia. IRLI is dedicated to litigating immigration-related cases on

behalf of, and in the interests of, United States citizens and to assisting courts in

understanding and accurately applying federal immigration law. IRLI has litigated

or filed amicus briefs in many important immigration cases, including in the district

court and Ninth Circuit in this matter and in Trump v. Hawaii, 585 U.S. 667 (2018),

United States v. Texas, 579 U.S. 547 (2016), Save Jobs USA v. U.S. Dep’t of Homeland

Sec., 942 F.3d 504 (D.C. Cir. 2019), Ariz. Dream Act Coalition v. Brewer, 855 F.3d 957

(9th Cir. 2017), Matter of Silva-Trevino, 26 I. & N. Dec. 826 (B.I.A. 2016), and Matter

of C-T-L-, 25 I. & N. Dec. 341 (B.I.A. 2010). For more than twenty years, the Board of

Immigration Appeals has solicited amicus briefs drafted by IRLI staff from IRLI’s

affiliate, the Federation for American Immigration Reform, because the Board

considers IRLI an expert in immigration law. For these reasons, IRLI has direct

interests in the issues presented here.

INTRODUCTION

The three consolidated appeals of several consolidated district-court cases

Consistent with FED. R. APP. P. 29(a)(4)(E) and this Court’s Rule 37.6, counsel

for amicus curiae authored this brief in whole, and no counsel for a party authored

the brief in whole or in part, nor did any person or entity, other than the amicus and

its counsel, make a monetary contribution to preparation or submission of the brief.

would benefit from—and arguably require—some untangling before the Circuit

Justice or full Court considers the emergency stay application. As is often the case,

Article III provides a ready solution for the Court to streamline this matter

considerably.

Procedural Background

The district court cases consist of an action (No. 2:22-cv-01124-SRB) by the

United States against the State of Arizona and its Secretary of State in the

Secretary’s official capacity (collectively, the “Defendants”) and several actions by

non-federal plaintiffs (the “Non-Federal Plaintiffs”) against the Defendants and some

additional defendants. The actions in district court were consolidated by a series of

orders, with the first-filed case (No. 2:22-cv-509-PHX-SRB) as the lead case. In their

independent pre-consolidation actions, the Non-Federal Plaintiffs named several

other official-capacity defendants, including Arizona’s Attorney General, the Director

of the Arizona Department of Transportation, and County Recorders. Acting through

their respective leaders, the two houses of Arizona’s Legislature—joined by the

Republican National Committee (collectively, the “Applicants”)—intervened as

defendants. There is a single judgment for all consolidated cases.

There are three consolidated appeals in the Ninth Circuit from the several

consolidated actions in district court: (a) in No. 24-3188, the Applicants appeal the

final judgment; (b) in No. 24-3559, the State of Arizona and the Arizona Attorney

General appeal the final judgment; and (c) in No. 24-4029, two of the Non-Federal

Plaintiffs cross-appeal the final judgment. In the Ninth Circuit, a motions panel

unanimously stayed the district court’s judgment in part, followed by a divided merits

panel decision to vacate that stay on the motion of several Non-Federal Plaintiffs.

Jurisdictional Background

Article III deprives federal courts of jurisdiction for advisory opinions, Muskrat

v. United States, 219 U.S. 346, 356-57 (1911), and confines them instead to cases or

controversies presented by affected parties properly before the court. U.S. CONST. art.

III, § 2. “All of the doctrines that cluster about Article III—not only standing but

mootness, ripeness, political question, and the like—relate in part, and in different

though overlapping ways, to ... the constitutional and prudential limits to the powers

of an unelected, unrepresentative judiciary in our kind of government.” Allen v.

Wright, 468 U.S. 737, 750 (1984) (internal quotation marks omitted).

Article III “standing” requires a judicially cognizable injury, caused by the

defendant, and redressable by a court. Lujan v. Defenders of Wildlife, 504 U.S. 555,

560-62 (1992). The proof required to show standing increases as litigation proceeds.

Davis v. Fed. Election Comm’n, 554 U.S. 724, 734 (2008). Standing must be present

from the inception, and it must last until judgment. Spencer v. Kemna, 523 U.S. 1, 7

(1998) (“case-or-controversy requirement subsists through all stages of federal

judicial proceedings, trial and appellate”); accord FBI v. Fikre, 601 U.S. 234, 244

(2024) (“a federal court’s duty to ensure itself of Article III jurisdiction may begin at

the inception of a lawsuit, [and] it persists throughout the life of the proceedings”);

Wittman v. Personhuballah, 578 U.S. 539, 543 (2016). Significantly, courts assess

standing claim by claim and defendant by defendant: “standing is not dispensed in

gross.” Lewis v. Casey, 518 U.S. 343, 358 n.6 (1996). Instead, “a plaintiff must

demonstrate standing for each claim he seeks to press” and “for each form of relief”

sought. DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 352 (2006) (internal quotation

marks omitted). In a particular case, it is enough if one party has standing vis-à-vis

a claim and defendant. Massachusetts v. Envtl. Prot. Agency, 549 U.S. 497, 518 (2007).

Under Food & Drug Admin. v. All. for Hippocratic Med., 602 U.S. 367, 395

(2024), voluntarily diverted resources generally do not establish standing because

plaintiffs cannot establish standing through self-inflicted injuries. Accord Clapper v.

Amnesty Int’l USA, 568 U.S. 398, 416 (2013). Plaintiffs also generally cannot assert

a third party’s rights, Kowalski v. Tesmer, 543 U.S. 125, 128-30 (2004), although

membership associations can assert the rights of their membership if at least one

member has standing, nothing requires the member’s individual participation, and

the issue is germane to the association’s purpose. Hunt v. Washington Apple

Advertising Comm’n, 432 U.S. 333, 343 (1977). For merits relief, the association must

identify one member by name—with sufficient proof of that member’s standing—

unless the nature of the litigated issue and the association indicate that all members

have standing. Summers v. Earth Island Inst., 555 U.S. 488, 497-98 (2009). Like all

plaintiffs, associational plaintiffs also can suffer injury themselves.

With consolidated cases, the individual cases remain jurisdictionally distinct.

Hall v. Hall, 584 U.S. 59, 66 (2018) (“one of multiple cases consolidated under [FED.

R. CIV. P. 42(a)] retains its independent character”). Similarly, with respect to

intervenors, Article III limits the intervenor to the case brought by the original

plaintiff—and the original plaintiff’s Article III jurisdiction—unless the intervenor

has its own Article III jurisdiction:

The same [Article III] principle applies to intervenors of

right. Although the context is different, the rule is the

same: For all relief sought, there must be a litigant with

standing, whether that litigant joins the lawsuit as a

plaintiff, a coplaintiff, or an intervenor of right. Thus, at

the least, an intervenor of right must demonstrate Article

III standing when it seeks additional relief beyond that

which the plaintiff requests. This result follows ineluctably

from our Article III case law[.]

Town of Chester v. Laroe Estates, Inc., 581 U.S. 433, 439 (2017).

Substantive Legal Background

The Constitution’s Elector-Qualifications Clause has tied voter qualifications

for elections for Representatives to the “Qualifications requisite for Electors of the

most numerous Branch of the State Legislature” in each State. U.S. CONST. art. I, §

2, cl. 2.2 In addition, the Elections Clause provides that state legislatures shall

prescribe the “Times, Places and Manner of holding Elections for Senators and

Representatives,” U.S. CONST. art. I, § 4, cl. 1, subject to the power of “Congress at

any time by Law [to] make or alter such Regulations.” Id. art. I, § 4, cl. 2. Article II

provides that the States “shall appoint, in such Manner as the Legislature thereof

may direct, a Number of Electors, equal to the whole Number of Senators and

Representatives to which the State may be entitled in Congress: but no Senator or

Representative ... shall be appointed an Elector.” Id. art. II, § 1, cl. 4.

The National Voter Registration Act, 52 U.S.C. §§ 20501-20511 (“NVRA”), was

passed to “increase the number of eligible citizens who register to vote for Federal

office,” and to “protect the integrity of the electoral process.” 52 U.S.C. § 20501(b)(3).

The NVRA accomplishes these objectives by “requir[ing] States to provide simplified

systems for registering to vote in federal elections.” Arizona v. Inter Tribal Council of

Ariz., Inc., 570 U.S. 1, 16 (2013) (internal quotation marks omitted) (“ITCA”). Chief

among the NVRA’s “simplified system” is the so-called “Federal Form” that States

must “accept and use” to register voters. 52 U.S.C. § 20505(a)(1).

The “Materiality Provision” of the Civil Rights Act of 1964 prohibits denying

the right to vote based on errors or omissions that are immaterial to determining

whether the person is qualified to vote under state law:

No person acting under color of law shall … deny the right

of any individual to vote in any election because of an error

or omission on any record or paper relating to any

application, registration, or other act requisite to voting, if

such error or omission is not material in determining

whether such individual is qualified under State law to

vote in such election[.]

52 U.S.C. § 10101(a)(2)(B).

The Seventeenth Amendment applied that to Senators. Id. amend. XVII, cl. 2.

Arizona’s Legislature enacted Arizona House Bill 2243 (“HB 2243”) and

Arizona House Bill 2492 (“HB 2492”) to improve election integrity by ensuring that

voter qualifications are enforced and that voter rolls are accurate. HB 2492 updates

voter qualifications to require documentary proof of citizenship, A.R.S. § 16-101(A)(1),

and proof of residence. A.R.S. § 16-579(A)(1). HB 2492 further provides that failure

to include proof of citizenship on a state voter registration form is grounds for the

application to be rejected by the county recorder. A.R.S. § 16-121.01(C). In accordance

with ITCA, 570 U.S. at 7, these new documentary proofs are not required for

applicants using the Federal Form to register to vote in congressional elections.

HB 2243 enumerates the reasons why a voter’s registration may be cancelled.

It also provides that, before a registration can be cancelled, the election official must

provide written notice of the impending cancellation with instructions for the voter

to remedy their registration. A.R.S. § 16-165. The notice must “include a list of

documents the person may provide” to establish his or her citizenship as well as “a

postage prepaid preaddressed return envelope.” Id. Registration will thus only be

cancelled following written notice and an opportunity to establish eligibility.

Furthermore, once a registration is cancelled, written notice is again provided to the

person explaining the cancellation and including instructions on how to register to

vote if the person is qualified. A.R.S. § 16-165(K).

Factual Background

The United States filed a two-count complaint alleging that HB 2492 violates

the NVRA—specifically, 52 U.S.C. § 20505—and the Civil Rights Act of 1964—

specifically, 52 U.S.C. § 10101(a)(2)(B)—by either requiring documentary proof of

citizenship (“DPOC”) or by placing restrictions on voters or prospective voters based

on their DPOC status or how they completed their registration forms. Compl. 14-16,

United States v. Arizona, No. 2:22-cv-01124-SRB (D. Ariz. filed July 5, 2022) (ECF

#1). The United States’s complaint seeks the following relief:

(1) [a declaratory judgment] that Sections 4 and 5 of House

Bill 2492 violate Section 6 of the National Voter

Registration Act of 1993, 52 U.S.C. § 20505(a)(1);

(2) [a declaratory judgment] that Sections 4 and 5 of House

Bill 2492 violate Section 101 of the Civil Rights Act of 1964,

52 U.S.C. § 10101(a)(2)(B);

(3) [an injunction prohibiting] Defendants, their agents

and successors in office, and all persons acting in concert

with them from enforcing the requirements of Sections 4

and 5 of House Bill 2492 that violate Section 6 of the

National Voter Registration Act of 1993, 52 U.S.C. §

20505(a)(1);

(4) [an injunction prohibiting] Defendants, their agents

and successors in office, and all persons acting in concert

with them from enforcing the requirements of Sections 4

and 5 of House Bill 2492 that violates Section 101 of the

Civil Rights Act of 1964, 52 U.S.C. § 10101(a)(2)(B);

(5) [an order that] Defendants, their agents and successors

in office, and all persons acting in concert with them …

take appropriate action to ensure uniform compliance with

this Court’s order by state, county, and local authorities

administering the State’s electoral processes[.]

Id. 16-17. As explained in this amicus brief, the United States’s complaint is the only

jurisdictionally proper complaint in the consolidated cases below.

STANDARD OF REVIEW

Stays pending the timely filing and resolution of petitions for writs of certiorari

are appropriate when there is “(1) a reasonable probability that four Justices will

consider the issue sufficiently meritorious to grant certiorari; (2) a fair prospect that

a majority of the Court will vote to reverse the judgment below; and (3) a likelihood

that irreparable harm will result from the denial of a stay.” Hollingsworth v. Perry,

558 U.S. 183, 190 (2010); cf. Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20

(2008). For “close cases,” the Court “will balance the equities and weigh the relative

harms to the applicant and to the respondent.” Hollingsworth, 558 U.S. at 190.

Appellate courts review jurisdictional issues before merits issues. Steel Co. v.

Citizens for a Better Env’t., 523 U.S. 83, 94-95 (1998) (“requirement that jurisdiction

be established as a threshold matter spring[s] from the nature and limits of the

judicial power of the United States and is inflexible and without exception”) (citations

and interior quotations omitted, alteration in original). Appellate courts “presume

that federal courts lack jurisdiction unless the contrary appears affirmatively from

the record.” Renne v. Geary, 501 U.S. 312, 316 (1991). If the record does not establish

jurisdiction, remand for dismissal is required:

[I]f the record discloses that the lower court was without

jurisdiction [an appellate] court will notice the defect,

although the parties make no contention concerning it.

[When the lower federal court] lack[s] jurisdiction, we have

jurisdiction on appeal, not of the merits but merely for the

purpose of correcting the error of the lower court in

entertaining the suit.

Steel Co., 523 U.S. at 95 (first and second alterations added, interior quotations

omitted). Even if the parties do not dispute jurisdiction, “no action of the parties can

confer subject-matter jurisdiction upon a federal court.” Insurance Corp. of Ireland,

Ltd. v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 702 (1982). Instead, “every

federal appellate court has a special obligation to satisfy itself not only of its own

jurisdiction, but also that of the lower courts in a cause under review, even though

the parties are prepared to concede it.” FW/PBS, Inc. v. City of Dallas, 493 U.S. 215,

231 (1990) (interior quotations omitted). “And if the record discloses that the lower

court was without jurisdiction [an appellate] court will notice the defect.” Id. (interior

quotations omitted). If the district court lacked jurisdiction over any claims or cases,

an appellate court must remand with instructions to dismiss them.

SUMMARY OF ARGUMENT

The Non-Federal Plaintiffs lack Article III standing because they have not

identified a member with standing for associational standing (Section II.A.1), and

their diverted resources are self-inflicted injuries that cannot support standing

(Section II.A.2). Moreover, the Arizona Secretary of State’s past settlement with some

plaintiffs-respondents provides no res judicata benefit—in the form of issue

preclusion or collateral estoppel—to this litigation (Section II.A.2.b). Significantly,

the consolidation of these actions in the district court does not absolve the plaintiffs

in each individual action from Article III’s jurisdictional requirements (Section II.A).

The United States’s two-count complaint presents the only merits issues properly

included in these consolidated cases. This Court should reject the first count—

namely, that the NVRA preempts HB 2492—because Arizona accepts and uses the

Federal Form as required by the NVRA and ITCA (Section II.B.2). This Court should

reject the second count—namely, that HB 2492 seeks immaterial information under

the Civil Rights Act of 1964—because place of birth is material to Arizona’s voter

qualification laws (Section II.B.3). Finally, although the Anderson-Burdick

framework3 is inapposite to these two statutory counts, HB 2492’s burdens are

minimal and thus permissible under the Anderson-Burdick framework, assuming

arguendo that the framework applied (Section II.B.4).

ARGUMENT

THE GRANT OF A WRIT OF CERTIORARI IS LIKELY.

This Court is likely to grant a petition for a writ of certiorari in this matter, as

the Court often does under Purcell v. Gonzalez, 549 U.S. 1 (2006) to guard against

litigation’s interference with elections close to an election. See, e.g., Republican Nat’l

Comm. v. Democratic Nat’l Comm., 589 U.S. 423 (2020); Andino v. Middleton, 141

S.Ct. 9 (2020). Beyond that, the merits issues of the balance between State power to

set voter qualifications under the Constitution and the claims in the various cases at

See Anderson v. Celebrezze, 460 U.S. 780 (1983); Burdick v. Takushi, 504 U.S.

428 (1992).

issue here present a significant federal question for this Court to resolve, considering

the constitutional doubt that the Court found in ITCA, 570 U.S. at 17.

This likelihood would best be shown if the Court deemed the application a

petition for a writ of certiorari and—so construed—actually granted the petition. See,

e.g., Wisconsin Legislature v. Wisconsin Elections Comm’n, 595 U.S. 398, 401 (2022)

(treating application as a petition, granting petition, and ruling summarily); United

States v. Texas, 143 S.Ct. 51 (2022) (treating application as petition and granting

petition while denying a stay). With major new decisions like Alliance for Hippocratic

Medicine, the Court can grant, vacate, and remand (“GVR”) for the lower courts to

apply the new precedent. Lawrence v. Chater, 516 U.S. 163, 166 (1996). Indeed, the

Court occasionally uses follow-on summary decisions to flesh out issues in recently

decided cases. See, e.g., Lambrix v. Singletary, 520 U.S. 518, 538-39 (1997); Richard

C. Chen, Summary Dispositions as Precedent, 61 WM. & MARY L. REV. 691, 694 (2020).

All these actions would be appropriate means of granting the emergency relief that

Applicants seek.

II.

APPLICANTS ARE LIKELY TO PREVAIL

The likelihood of prevailing is the principal factor for determining an

entitlement to interim relief. Hollingsworth, 558 U.S. at 190; Winter, 555 U.S. at 20.

Because the Applicants are correct on the merits and the Non-Federal Plaintiffs lack

standing, the Applicants are likely to prevail.

The courts below lack Article III jurisdiction over the NonFederal Plaintiffs’ actions.

This Court’s first obligation is to assure itself not only of its jurisdiction but

also of the district court’s jurisdiction. Steel Co., 523 U.S. at 95. As explained in this

Section, the record here does not affirmatively establish the Non-Federal Plaintiffs’

Article III standing. Under Renne, 501 U.S. at 316, this Court therefore must assume

that jurisdiction is lacking. The parties’ willingness to concede standing is irrelevant.

Insurance Corp. of Ireland, 456 U.S. at 702; In re Kieslich, 258 F.3d 968, 970 (9th Cir.

2001) (“subject matter jurisdiction cannot be created by waiver or consent”). Each of

the Non-Federal Plaintiffs’ cases nonetheless retains its own discrete jurisdictional

character, Hall, 584 U.S. at 66, and each of those cases was—and remains—

independently subject to Article III. Town of Chester, 581 U.S. at 439. While federal

courts have Article III jurisdiction to consider the United States’s two claims against

Arizona and its Secretary of State, that is the extent of federal jurisdiction.

Moreover, the United States’s standing cannot cure the Non-Federal Plaintiffs’

lack of standing when the Non-Federal Plaintiffs filed their own independent actions.

See Spencer, 523 U.S. at 7; Fikre, 601 U.S. at 244. Indeed, these independent suits

are unnecessary because—if the United States prevails—the relief will extend to all

purported members of the Non-Federal Plaintiffs. The only difference will be whether

the Non-Federal Plaintiffs’ counsel recover fees, see, e.g., 42 U.S.C. § 1988(b); 52

U.S.C. § 20510(c), but a question about entitlement to fees “is insufficient to create

an Article III case or controversy where none exists on the merits of the underlying

claim.” Steel Co., 523 U.S. at 107 (internal quotation marks omitted).

The Non-Federal Plaintiffs lack associational standing.

Although the Non-Federal Plaintiffs may have members, they do not have

associational standing based on their membership’s alleged injuries.4 To show

associational standing, a membership organization must have put forward affidavits

showing at least one member who has had standing throughout the pendency of the

Non-Federal Complainant’s case from inception to judgment. Summers, 555 U.S. at

497-98. To evade this requirement, the district court cites Clapper for the proposition

that associational plaintiffs need not identify members if the injury is sufficiently

The district court uses the term “representational” standing as synonymous

with “associational” standing. See Amended Order 56-57 (Appl. App. 102-03).

imminent:

[A] plaintiff need not identify specific individuals who are

likely to be harmed by the challenged conduct, so long as

the future injury alleged is “certainly impending.” Clapper,

568 U.S. at 409.

Amended Order 58 (Appl. App. 104). In doing so, the district court erroneously

conflates imminence with the requirement that an injury be particularized. Certainty

of injury to someone else is not necessarily an injury to an association or its members

unless the challenged law injures the entire membership. For example, a union whose

members consisted exclusively of drivers with commercial driver’s licenses (“CDLs”)

could challenge a tax on CDLs without identifying a specific member. Here, by

contrast, Arizona law does not injure every member of any would-be associational

plaintiff-respondent. This Court has rejected the district court’s approach as

“mak[ing] a mockery of our prior cases, which have required plaintiff-organizations

to make specific allegations establishing that at least one identified member had

suffered or would suffer harm.” Summers, 555 U.S. at 497-98. Accordingly, the NonFederal Plaintiffs’ standing required identifying at least one member with standing,

as they all failed to do.

With respect to one of a tribal plaintiff-respondent, the district court found

“representational” standing to challenge the requirement for documentary proof of

location of residence (“DPOR”):

The Court concludes that the San Carlos Apache Tribe has

representational standing to challenge the DPOR

Requirement. First, the Tribe’s members would have

standing to sue in their own right. Given the impending

enforcement of the Voting Laws, the Tribe’s members face

a “realistic danger of sustaining a direct injury” due to the

DPOR Requirement. This constitutes an injury-in-fact,

which is traceable to H.B. 2492 and redressable by an

injunction preventing their enforcement. Second, the Tribe

seeks to protect voting rights of its members, which is

germane to the Tribe’s purpose. And third, the Tribe’s

claim and requested relief do not require the participation

of its members in this litigation. In addition, because it is

“relatively clear” that at least one of the Tribe’s members

will be impacted by the DPOR requirement, and because

defendants need not know the identity of any particular

Tribe member to respond to the Tribe’s claims, it is not

necessary for the Tribe to identify any specific member who

will be injured by the challenged provisions.

Amended Order 61-63 (Appl. App. 107-08) (citations omitted). By treating the tribe

as a membership group, the district court’s analysis is flawed for the same reason

that its private-plaintiff analysis is flawed: it is impossible to know if a single member

is truly affected. Under the Anderson-Burdick test, moreover, it is impossible to know

the scope of the burden imposed without knowing more about the person allegedly

injured by the law. See Section II.B.4 & n.6, infra. Thus, even with respect to the

DPOR requirement, the Non-Federal Plaintiffs lack associational standing.

The Non-Federal Plaintiffs lack their own standing.

The district court found standing based on the organizational plaintiffs’ selfinflicted injury of diverting their resources. See Amended Order 57-61 (Appl. App.

103-07). Such injuries are simply not a basis that qualifies as a cognizable injury

caused by the defendants. All. for Hippocratic Med., 602 U.S. at 395; Clapper, 568

U.S. at 416. To the extent that the lower courts relied on the Non-Federal Plaintiffs’

diverted resources, the district court’s judgment provides no basis for relief.

Havens is inapposite here for the same reasons as

in Alliance for Hippocratic Medicine.

The Non-Federal Plaintiffs based their standing primarily on their voluntarily

diverted resources, Amended Order 57-61 (Appl. App. 103-07), which are mere selfinflicted injuries. All. for Hippocratic Med., 602 U.S. at 395 (distinguishing Havens

Realty Corp. v. Coleman, 455 U.S. 363, 372-73 (1982), for resources spent advocating

against the challenged action); see also Clapper, 568 U.S. at 416-18 (self-censorship

due to fear of surveillance insufficient for standing); Pennsylvania v. New Jersey, 426

U.S. 660, 664 (1976) (financial losses state parties could have avoided insufficient for

standing); cf. Sierra Club v. Morton, 405 U.S. 727, 739 (1972) (mere advocacy by an

organization does not confer standing to defend “abstract social interests”). This

Court has an obligation to confine the lower courts to their Article III jurisdiction.

Res judicata principles do not provide standing for

the Non-Federal Complainants.

The fact that the Non-Federal Plaintiffs were viewed to have had standing for

a prior settlement or consent decree says nothing about their standing here.

Res judicata principles such as collateral estoppel and issue preclusion can be

abandoned if not asserted. Arizona v. California, 530 U.S. 392, 410 (2000). The NonFederal Plaintiffs have not claimed preclusive standing. Nor could they, as shown

below. Further, “settlements ordinarily occasion no issue preclusion (sometimes

called collateral estoppel), unless it is clear, as it is not here, that the parties [so]

intend.” Id. at 414. Finding issue preclusion in Arizona requires a final judgment:

Collateral estoppel or issue preclusion is applicable when

the issue or fact to be litigated was actually litigated in a

previous suit, a final judgment was entered, and the party

against whom the doctrine is to be invoked had a full

opportunity to litigate the matter and actually did litigate

it, provided such issue or fact was essential to the prior

judgment.

Chaney Bldg. Co. v. Tucson, 148 Ariz. 571, 573 (1986). The parties did not litigate the

Non-Federal Plaintiffs’ standing—or anything else—to final judgment.

Even if the Non-Federal Plaintiffs and their settlement had envisioned future

preclusion, the parties’ agreement would not withstand the change in controlling law

under the supervening Alliance for Hippocratic Medicine decision. Arizona “generally

follow[s] the Restatement [of Judgments] absent statutes or case law to the contrary,”

Barnes v. Outlaw, 192 Ariz. 283, 285 (1998), and the Restatement recognizes a change

in the law as cutting short the otherwise-preclusive effect of a prior judgment.

Although an issue is actually litigated and determined by

a valid and final judgment, and the determination is

essential to the judgment, relitigation of the issue in a

subsequent action between the parties is not precluded in

the following circumstances:

…

(2) The issue is one of law and (a) the two actions involve

claims that are substantially unrelated, or (b) a new

determination is warranted in order to take account of an

intervening change in the applicable legal context.

State v. Whelan, 208 Ariz. 168, 172-73 (App. 2004) (quoting RESTATEMENT (SECOND)

OF JUDGMENTS ¶ 28, (emphasis in Whelan); accord Corbett v. Manorcare of Am. Inc.,

213 Ariz. 618, 626 (App. 2006) (citing Montana v. United States, 440 U.S. 147, 155

(1979)). In short, the Non-Federal Plaintiffs past litigation with Arizona’s Secretary

of State provides no basis for them to assert standing here.

HB 2492 complies with federal law.

The right to vote has long been recognized as a fundamental right of U.S.

citizens. See, e.g., Illinois Bd. of Elections v. Socialist Workers Party, 440 U.S. 173,

184 (1979) (“voting is of the most fundamental significance under our constitutional

structure”); Wesberry v Sanders, 376 U.S. 1, 17 (1964) (“[o]ther rights, even the most

basic, are illusory if the right to vote is undermined”); Yick Wo v. Hopkins, 118 U.S.

356, 370 (1886) (right to vote is “preservative of all rights”); cf. Foley v. Connelie, 435

U.S. 291, 296 (1978) (recognizing the “right[] of the people to be governed by their

citizen peers”). The fundamental nature of the right to vote requires rules and

regulations to ensure fairness and faith in elections. See Storer v. Brown, 415 U.S.

724, 730 (1974) (“as a practical matter, there must be a substantial regulation of

elections if they are to be fair and honest and if some sort of order, rather than chaos,

is to accompany the democratic processes”).

The States have plenary power over voter qualifications.

States have compelling interests in protecting the integrity and reliability of

the electoral process by deterring and detecting voter fraud and—relatedly—

safeguarding voter confidence. Crawford v. Marion Cty. Election Bd., 553 U.S. 181,

191 (2008); Purcell, 549 U.S. at 4 (“[a] State has a compelling interest in preserving

the integrity of the election process”) (internal quotation marks omitted). Accordingly,

“States … must regulate their elections to ensure that they are conducted in a fair

and orderly fashion.” Buckley v. Am. Const’l Law Found., 525 U.S. 182, 206 (1999).

Notwithstanding that valid federal law supersedes state law when the two conflict,

U.S. CONST. art. VI, cl. 2, the Constitution vests control over voting qualifications

and—outside of time-place-manner issues—election provisions in the States.

Specifically, the power of Congress to regulate the “time, place, and manner”

of elections in one section of Article I neither applies to nor limits the States’ plenary

power to set elector qualifications elsewhere in Article I. Compare U.S. CONST. art. I,

§ 2, cl. 2 with id. art. I, § 4, cl. 2. On voter qualifications, State law controls:

One cannot read the Elections Clause as treating implicitly

what these other constitutional provisions regulate

explicitly. “It is difficult to see how words could be clearer

in stating what Congress can control and what it cannot

control. Surely nothing in these provisions lends itself to

the view that voting qualifications in federal elections are

to be set by Congress.”

ITCA, 570 U.S. at 16 (quoting Oregon v. Mitchell, 400 U.S. 112, 210 (1970) (Harlan,

J., concurring in part and dissenting in part)). While Congress’s authority under the

Elections Clause to enact time-place-manner requirements is broad, Husted v. A.

Philip Randolph Inst., 584 U.S. 756, 799 (2018) (Breyer, J., dissenting), Congress has

only the authority “to regulate how federal elections are held, but not who may vote

in them.” ITCA, 570 U.S. at 16 (emphases in original).

The NVRA does not preempt HB 2492.

The United States’s first count claims that 52 U.S.C. § 20505 preempts HB

2492. Neither the NVRA nor ITCA should be read to infringe on States’ constitutional

authority over voter qualifications in federal elections, nor to bar States from

performing their constitutional duty to safeguard election integrity. Nothing in the

NVRA or ITCA requires States conclusively to presume the truth of any assertion

made on a Federal Form, forbids States from verifying assertions made on the form,

or precludes States from purging their voter rolls of ineligible voters.

HB 2492 does not conflict with the NVRA’s requirement that States accept and use the Federal Form.

This Court confirmed that—by requiring that “[e]ach State accept and use the”

Federal Form for voter registration, 52 U.S.C. § 20505(a)(1)—the NVRA precludes

States from requiring applicants using the Federal Form to provide information

beyond that required by that form. ITAC, 570 U.S. at 15 (“a state-imposed requirement of evidence of citizenship not required by the Federal Form is inconsistent with

the NVRA’s mandate that States ‘accept and use’ the Federal Form”). HB 2492 does

not conflict with that requirement, as this Court interpreted it in ICTA.

Specifically, the NVRA’s “accept and use” requirement “does not preclude

States from deny[ing] registration based on information in their possession

establishing the applicant’s ineligibility.” ITAC, 570 U.S. at 15. To the contrary, the

“NVRA clearly contemplates that not every submitted Federal Form will result in

registration.” Id. HB 2492 complies with the NVRA and ITCA because HB 2492 does

not interfere with Arizona’s accepting and using the Federal Form.

Arizona does not require Federal Form applicants to submit evidence of

citizenship or residence; those requirements apply only to the state registration form.

For state form applicants, HB 2492 requires automatic rejection without evidence of

citizenship, but that requirement expressly excludes applicants who submit the

Federal Form. See A.R.S. § 16-121.01(C) (requiring rejection where proof of

citizenship is lacking “[e]xcept for [applications submitted via] a form produced by

the United States election assistance commission”).

For the Federal Form, election officials must “use all available resources to

verify the citizenship status of the [Federal Form] applicant.” Id. § 16-121.01(D).

Those resources include—without limitation—databases for the Department of

Transportation, Social Security Administration, and the United States Citizenship

and Immigration Service Systematic Alien Verification for Entitlements Program.

See id. § 16-121.01(D)(1)-(5). If citizenship cannot be verified from that information,

the election official must provide written notice that “the applicant will not be

qualified to vote in a presidential election or by mail with an early ballot in any

election until satisfactory evidence of citizenship is provided.” Id. § 16-121.01(E). But,

unless the election official affirmatively determines that the applicant is not a U.S.

citizen, the applicant is otherwise registered. Id. These procedures do not conflict with

the mandate that States “accept and use” the Federal Form as clarified in ITCA.

States retain the power to create and use their own

mail-in voter registration forms under the NVRA.

Although the NVRA requires States to “accept and use” the Federal Form, the

NVRA permits States to “develop and use a mail voter registration form that meets

all of the criteria stated in section 9(b)[.]” 52 U.S.C. § 20505(a)(2). Thus, although “the

NVRA imposes certain mandates on states, describing those mandates in detail[,]”

the NVRA “still leaves [the States] room for policy choice.” Young v. Fordice, 520 U.S.

273, 286 (1997). Arizona has made a “policy choice” that the NVRA does not preempt.

Under the Elector-Qualifications Clause, Arizona permissibly chose to require

proof of citizenship on its state mail voter registration form, which the NVRA allows.

First, the NVRA provides what a mail registration form “may require ... to assess the

eligibility of the applicant.” 52 U.S.C. § 20508(b)(1). But “[t]he NVRA does not list,

for example, all other information the State may—or may not—provide or request.”

Young, 520 U.S. at 286. Because Section 9(b) does not contain any prohibitions on

requiring that documentary evidence be submitted in conjunction with a mail voter

registration, States are free to require such information. Accordingly, the fact that

the Federal Form does not require documentary proof of citizenship does not preclude

States from requiring such information on their own forms.

Second, the NVRA indicates what mail registration forms must contain. It

provides that the registration form “shall include a statement that specifies each

eligibility requirement (including citizenship); contains an attestation that the

applicant meets such requirement; and requires the signature of the applicant, under

penalty of perjury.” 52 U.S.C. § 20508(b)(2). The NVRA’s only prohibition provides

that the registration form “may not include any requirement for notarization or other

formal authentication.” 52 U.S.C. § 20508(b)(3). The Arizona mail voter registration

form does not violate anything expressly in the NVRA.

Third, “state-developed forms may require information the Federal Form does

not.” ITCA, 570 U.S. at 12. Therefore, under the NVRA, “States retain the flexibility

to design and use their own registration forms.” Id. Nothing in the NVRA prohibits

Arizona’s requiring more information—including documentary evidence—in its own

mail registration form than the Federal Form requires. Id. The purpose of the Federal

Form is to provide a simple, streamlined method for voter registration, not to

interfere with the States’ authority to conduct elections.

NVRA does not prevent the States from purging

ineligible voters from the voter rolls.

The NVRA requires that States “conduct a general program that makes a

reasonable effort to remove the names of ineligible voters from the official lists of

eligible voters by reason of the death of the registrant; or a change in address of the

registrant.” 52 U.S.C. § 20507(a)(4). The NVRA further provides examples of how

States may conduct these programs, including the requirement that such programs

be completed “not later than 90 days prior to the date of a primary or general election

for Federal office.” 52 U.S.C. § 20507(c). Finally, names are not to be removed for

change of residence reasons absent written confirmation of an address change or

failure to respond to written notice combined with failure to vote. 52 U.S.C. §

20507(d). HB 2492 complies with these requirements. Because the NVRA does not

prohibit the States from removing voters based on ineligibility, Arizona is free to

remove persons it has determined are not U.S. citizens.

HB 2492 does not violate the Materiality Clause.

The United States’s second count claims that HB 2492 violates the Civil Rights

Act of 1964’s “Materiality Provision,” 52 U.S.C. § 10101(a)(2)(B), by denying the right

to vote based on the omission of immaterial information. The United States’s

argument that the information is not material to Arizona’s interest under the ElectorQualifications Clause in identifying noncitizens is simply not credible. Arizona wants

to identify people not born in the United States analogously to why Willie Sutton

robbed banks: “that’s where the money is.” Pamela S. Karlan, Discrete and Relational

Criminal Representation: The Changing Vision of the Right to Counsel, 105 HARV. L.

REV. 670, 683 (1992). Here, instead of money, the search is for noncitizens, who are

exponentially more prevalent among those born outside the United States than

among those born in the United States. Thus, identifying the subset of people not

born in the United States obviously provides useful information.

The United States’s “materiality” count asks whether an applicant’s place of

birth is or “is not material in determining whether such individual is qualified under

State law to vote in such election[.]” 52 U.S.C. § 10101(a)(2)(B); accord Civil Rights

Act of 1964, PUB. L. NO. 88-352, §101(a), 78 Stat. 241. The phrase “not material” or

“immaterial” means “lacking any logical connection with the consequential facts.”

BLACK’S LAW DICTIONARY 896 (11th ed. 2019); cf. Basic Inc. v. Levinson, 485 U.S. 224,

239 (1988) (“[n]o particular event or factor short of closing the transaction need be

either necessary or sufficient by itself to render merger discussions material”)

(discussing necessity and sufficiency in the context of materiality in securities

transactions). When Congress enacted the Civil Rights Act of 1964, immateriality

was a real thing. See, e.g., Gloria J. Browne-Marshall, THE VOTING RIGHTS WAR: THE

NAACP AND THE ONGOING STRUGGLE FOR JUSTICE 110 (2016) (requiring prospective

Black voters “to count the number of jelly beans in a large jar just by looking at it”).

As a simple matter of statutory construction and leaving aside the lack of a federal

interest under the Elector-Qualifications Clause, the United States’s claim that

foreign birth is immaterial to citizenship exceeds what Congress meant in 1964.

Although ITCA rejected a full-fledged presumption against preemption for

Elections Clause legislation, ITCA, 570 U.S. at 13-14 (“[we] have never mentioned

such a principle in our Elections Clause cases”) (citing Ex parte Siebold, 100 U.S. 371,

384 (1880)), ITCA did not reject deference to State law or federalism as tools of

statutory construction. See id. To the contrary, even without a presumption against

preemption, Elections Clause precedents require clear congressional statements to

displace State authority. Under Siebold—on which ITCA relied—courts “presume

that Congress has [exercised its authority] in a judicious manner” and “that it has

endeavored to guard as far as possible against any unnecessary interference with

State laws.” Siebold, 100 U.S. at 393. Similarly, Elections Clause precedents not only

require Congress to “have expressed a clear purpose to establish some further or

definite regulation” before supplanting State authority over elections but also

“consider[] the policy of Congress not to interfere with elections within a state except

by clear and specific provisions.” United States v. Bathgate, 246 U.S. 220, 225-26

(1918); United States v. Gradwell, 243 U.S. 476, 485 (1917); cf. United States v. Bass,

404 U.S. 336, 349 (1971) (requiring clear congressional statement before statute “will

… be deemed to have significantly changed the federal-state balance”); Gonzales v.

Oregon, 546 U.S. 243, 275 (2006) (same). Siebold, Gradwell, and Bathgate clarify that

courts construing federal election statutes must weigh States’ independent authority

and federalism, even without a full-fledged presumption against preemption.

If Congress wants to update the Civil Rights Act to cover information that a

State considers important under the Elector-Qualifications Clause, but where the

federal Department of Justice disagrees, Congress perhaps could write that law. In

doing so, Congress would be working against the canon against constitutional doubt,

ITCA, 570 U.S. at 17 (quoted infra), and the recent demise of the Chevron doctrine.

Loper Bright Enters. v. Raimondo, 144 S.Ct. 2244, 2273 (2024) (overruling deference

under Chevron, U.S.A., Inc. v. NRDC, Inc., 467 U.S. 837, 842-45 (1984)). But it

stretches credulity to argue that Congress in 1964 meant the phrase “not material”

to include Arizona’s wanting to know whether applicants were born abroad to narrow

the field of applicants who warrant further inquiry about their citizenship status.

There is an obvious “logical connection” between the two issues.

The Anderson-Burdick test does not apply, but HB 2492

meets the test in any event.

The United States’s two claims arise under the NVRA and the Civil Rights Act

of 1964’s “Materiality Provision.” Those claims do not arise under the Constitution.

As such, amicus IRLI respectfully submits that the Anderson-Burdick framework for

analyzing constitutional issues in the voting context is simply inapposite.5

Under the Anderson-Burdick framework, “[w]hen the burdens on voting

imposed by the government are severe, strict scrutiny applies,” Dudum, 640 F.3d at

1106, although “voting regulations are rarely subjected to strict scrutiny.” Id. When

the burdens are not severe, “less exacting review, and a State’s important regulatory

interest will usually be enough to justify reasonable, nondiscriminatory restrictions.”

See Dudum v. Arntz, 640 F.3d 1098, 1106 n.15 (9th Cir. 2011) (First

Amendment, Due Process & Equal Protection Clauses); Acevedo v. Cook Cnty. Officers

Electoral Bd., 925 F.3d 944, 948 (7th Cir. 2019) (First & Fourteenth Amendments);

Ariz. Democratic Party v. Hobbs, 18 F.4th 1179, 1195 (9th Cir. 2021) (similar).

Id. Neither the NVRA nor the Materiality Provision compel anything more than

traditional tools of statutory construction. Indeed, with respect to federal laws that

impede or encroach upon Arizona’s ability to enforce the Elector-Qualifications

Clause, a federal court should consider the doubt canon that ITCA invoked:

Since the power to establish voting requirements is of little

value without the power to enforce those requirements,

Arizona is correct that it would raise serious constitutional

doubts if a federal statute precluded a State from obtaining

the information necessary to enforce its voter qualifications.

ITCA, 570 U.S. at 17 (emphasis added). Even without applying the doubt canon to

the United States’s position, the United States’s two claims do not call into question

any heightened scrutiny against Arizona law. At best for the United States, the

question is simply what the two statutes—the NVRA and the Materiality Provision—

mean. As shown in Sections II.B.2-II.B.3, supra, the United States’s claims must fail.

To the extent that the Anderson-Burdick framework would apply to the United

States’s statutory claims, the burden that HB 2492 imposes on qualified voters is

minimal. By way of comparison, for voter-identification laws, the trip to a licensing

authority, gathering paperwork, and posing for a photograph—far more than is

required here—hardly even registered as a burden:

For most voters who need them, the inconvenience of

making a trip to the [licensing authority], gathering the

required documents, and posing for a photograph surely

does not qualify as a substantial burden on the right to vote,

or even represent a significant increase over the usual

burdens of voting.

Crawford, 553 U.S. at 198; Burdick, 504 U.S. at 433-34 (“[e]lection laws will

invariably impose some burden upon individual voters”). “Lesser burdens … trigger

less exacting review, and a State’s important regulatory interest will usually be

enough to justify reasonable, nondiscriminatory restrictions.” Timmons v. Twin

Cities Area New Party, 520 U.S. 351, 358 (1997). Indeed, “because a government has

such a compelling interest in securing the right to vote freely and effectively, this

Court never has held a State ‘to the burden of demonstrating empirically the objective

effects on political stability that [are] produced’ by the voting regulation in question.”

Burson v. Freeman, 504 U.S. 191, 210 (1992) (quoting Munro v. Socialist Workers

Party, 479 U.S. 189, 195 (1986)) (alteration in Burson). The United States’s claims

here are wholly unwarranted by the minimal burden at issue.6

III.

APPLICANTS WILL SUFFER IRREPARABLE HARM, AND THE

EQUITIES FAVOR A STAY.

Enjoining Arizona’s voter-qualification standards close to an election would

irreparably harm Applicants. Arizona’s Legislature would suffer unauthorized

intrusion into the method it selected for Arizona to exercise the Legislature’s vote in

the presidential election. See U.S. CONST. art. II, § 1, cl. 4. The Republican National

Committee will be denied an election pursuant to the duly authorized laws, see id.;

id. art. I, § 4, cl. 1, a denial the Committee has standing to contest in federal court.

See, e.g., Mecinas v. Hobbs, 30 F.4th 890, 897-900 (9th Cir. 2022); Trump v. Wis.

Elections Comm’n, 983 F.3d 919, 924 (7th Cir. 2020); cf. Clinton v. City of New York,

524 U.S. 417, 433 n.22 (1998) (unequal-footing injuries apply outside equal-protection

context). Indeed, the electoral interests of the Committee seem likely to be especially

harmed by any increase in votes cast by aliens, since its presidential candidate is

widely seen as favoring border security far more than his opponent. For all

Applicants, a “do over” election will not be available if the Ninth Circuit denies their

respective rights to a fair and lawful 2024 election now and they end up prevailing in

the future. In a word, their threatened injuries are “irreparable.”

In close cases—and this is not a close case—appellate courts should balance

Similarly, if the Court determines any of the Non-Federal Plaintiffs have

standing for a constitutional claim, the lack of burden here should suffice under the

Anderson-Burdick framework.

the equities. Hollingsworth, 558 U.S. at 190. But where the parties dispute the

lawfulness of government actions, the public interest collapses into the merits. See,

e.g., League of Women Voters of the United States v. Newby, 838 F.3d 1, 12 (D.C. Cir.

2016). Given Arizona’s greater interest in voter qualifications and its compliance with

federal law, see Section II.B, supra, the case is neither close nor one where the equities

tip away from Applicants’ clear interests.

CONCLUSION

For the foregoing reasons and those argued by Applicants, the Circuit Justice

or the full Court should grant the emergency application.

Dated: August 15, 2024

Respectfully submitted,

Christopher J. Hajec

Immigration Reform Law Institute

25 Massachusetts Ave. NW, Suite 335

Washington, DC 20001

Telephone: (202) 232-5590

chajec@irli.org

Lawrence J. Joseph

Counsel of Record

1250 Connecticut Av NW Suite 700-1A

Washington, DC 20036

Telephone: (202) 355-9452

Facsimile: (202) 318-2254

lj@larryjoseph.com

Counsel for Amicus Curiae Immigration

Reform Law Institute

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.