Petitioners Brief — Republican National Committee, Petitioner v. Mi Familia Vota, et al.
Supreme Court briefAug 28, 2026
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No. 25-1017
In the
Supreme Court of the United States
________________
REPUBLICAN NATIONAL COMMITTEE,
Petitioner,
v.
MI FAMILIA VOTA, ET AL.,
Respondents.
________________
On Writ of Certiorari to the United States Court of
Appeals for the Ninth Circuit
________________
BRIEF FOR RESPONDENTS STATE OF
ARIZONA AND ITS ATTORNEY GENERAL IN
PARTIAL SUPPORT OF PETITIONER
________________
KRISTIN K. MAYES
HAYLEIGH S. CRAWFORD
Attorney General
JOSHUA M. WHITAKER
KATHRYN E. BOUGHTON
DANIEL C. BARR
TIMOTHY E. D. HORLEY
Assistant Attorneys
Chief Deputy
Attorney General
General
JOSHUA D. BENDOR
Solicitor General
Counsel of Record
OFFICE OF THE ARIZONA
ATTORNEY GENERAL
2005 N. Central Ave.
Phoenix, AZ 85004
(602) 542-8958
Joshua.Bendor@azag.gov
Counsel for Respondents State of Arizona and
Arizona Attorney General Kristin K. Mayes
August 28, 2026
QUESTIONS PRESENTED
The RNC’s petition raised two questions:
1) Does the National Voter Registration Act or a
federal consent decree prohibit Arizona from requiring
voter-registration applicants to produce “satisfactory
evidence” of U.S. citizenship when registering with a
state registration form?
2) Does the National Voter Registration Act
prohibit Arizona from implementing a program within
90 days of a federal election to cancel the registrations
of voters who are not U.S. citizens?
The present brief discusses the first question only.
ii
PARTIES TO THE PROCEEDING
This Court granted the petition for writ of
certiorari in No. 25-1017 and has not acted on the
petitions in Nos. 25-1019 and 25-1022.
In No. 25-1017, Petitioner is the RNC, and
Respondents are:
•
the United States;
•
Mi Familia Vota and Voto Latino;
•
Living United for Change in Arizona, League of
United Latin American Citizens Arizona, Arizona
Students’ Association, ADRC Action, Inter Tribal
Council of Arizona Inc., the San Carlos Apache
Tribe, and Arizona Coalition for Change;
•
Poder Latinx, Chicanos Por La Causa Inc., and
Chicanos Por La Causa Action Fund;
•
the DNC and the Arizona Democratic Party;
•
Arizona Asian American Native Hawaiian and
Pacific Islander for Equity Coalition;
•
Promise
Arizona
and
Southwest
Registration Education Project;
•
the Tohono O’odham Nation, the Gila River Indian
Community, Keanu Stevens, Alanna Siquieros,
and LaDonna Jacket;
•
the State of Arizona and Arizona Attorney General
Kristin K. Mayes;
•
Arizona Senate President Warrant Petersen and
Arizona House Speaker Steve Montenegro;
•
Arizona Secretary of State Adrian Fontes;
Voter
iii
•
Arizona Department of Transportation Director
Jennifer Toth; and
•
the Recorders of all fifteen of Arizona’s counties.
iv
TABLE OF CONTENTS
QUESTIONS PRESENTED ....................................... i
PARTIES TO THE PROCEEDING ........................... ii
TABLE OF AUTHORITIES ...................................... vi
INTRODUCTION ....................................................... 1
STATEMENT OF THE CASE ................................... 2
A. From 2013 to 2018, Arizona officials
rejected State Forms unaccompanied by
proof of citizenship, but not Federal
Forms. ........................................................... 2
B. In 2018, Arizona officials agreed to a
consent decree to treat Federal and State
Forms the same. ........................................... 4
C. In 2022, an Arizona law required
rejection of State Forms unaccompanied
by proof of citizenship, contrary to the
consent decree............................................... 6
D. The district court declared that “Arizona
must abide by” the consent decree and
then entered an injunction. .......................... 8
E. This Court stayed the district court’s
injunction. ................................................... 10
F.
The Ninth Circuit affirmed the district
court’s injunction, citing the consent
decree
and
the
National
Voter
Registration Act.......................................... 11
SUMMARY OF ARGUMENT .................................. 12
v
ARGUMENT ............................................................. 13
I.
The National Voter Registration Act does not
prohibit Arizona from requiring proof of
citizenship for State Form users. ...................... 13
A. In Arizona, proof of citizenship is
“necessary to enable the appropriate
State election official” to assess eligibility
of State Form users. ................................... 14
B. Arizona may require proof of citizenship
for State Form users regardless of
whether the State Form is “equivalent” to
the Federal Form. ....................................... 17
II. The consent decree remains binding, but
parties and perhaps affected non-parties may
seek to vacate or modify it. ............................... 20
A. The consent decree remains binding
unless and until it is vacated, even
though it prohibits what Arizona law now
requires. ...................................................... 21
B. Parties to the consent decree and
perhaps affected non-parties may seek to
vacate or modify the decree........................ 24
CONCLUSION ......................................................... 27
vi
TABLE OF AUTHORITIES
Cases
Agostini v. Felton,
521 U.S. 203 (1997) ................................................ 23
Arizona v. Inter Tribal Council of Arizona, Inc.,
570 U.S. 1 (2013) ........ 2, 3, 13, 14 ,15, 16, 18, 19, 20
Ayestas v. Davis,
584 U.S. 28 (2018) .................................................. 16
Celotex Corp. v. Edwards,
514 U.S. 300 (1995) .................................... 22, 23, 27
Foster v. Stanek,
689 F. Supp. 3d 975 (D. Kan. 2023) ...................... 25
Frew ex rel. Frew v. Hawkins,
540 U.S. 431 (2004) .......................................... 22, 23
Gonzalez v. Arizona,
D. Ariz. No. CV-06-1268-PHX-ROS, 2013 WL
7767705 (Sept. 11, 2013)........................................ 19
GTE Sylvania, Inc. v. Consumers Union of U.S., Inc.,
445 U.S. 375 (1980) ................................................ 22
Horne v. Flores,
557 U.S. 433 (2009) .......................................... 23, 26
League of United Latin American Citizens of Arizona
et al. v. Reagan et al.,
D. Ariz. No. 17-cv-4102 ............................................ 4
vii
O’Sullivan v. City of Chicago,
396 F.3d 843 (7th Cir. 2005) .................................. 22
Roberts v. St. Regis Paper Co.,
653 F.2d 166 (5th Cir. 1981) .................................. 24
Rufo v. Inmates of Suffolk Cnty. Jail,
502 U.S. 367 (1992) .......................................... 21, 22
Sys. Fed’n No. 91 v. Wright,
364 U.S. 642 (1961) ................................................ 22
Thompson v. HUD,
404 F.3d 821 (4th Cir. 2005) .................................. 24
United States v. Swift & Co.,
286 U.S. 106 (1932) ................................................ 22
Young v. Fordice,
520 U.S. 273 (1997) .................................................. 2
Constitution and Statutes
Ariz. Const. art. 7, § 2(A)............................................. 2
52 U.S.C. § 20504(c)(2)(B)(ii) .................................... 16
52 U.S.C. § 20505(a)(1) ........................................ 14, 19
52 U.S.C. § 20505(a)(2) .............................................. 14
52 U.S.C. § 20506 ...................................................... 19
52 U.S.C. § 20506(a)(6)(A) ....................... 12, 13, 18, 19
52 U.S.C. § 20508(b) .................................................. 14
viii
52 U.S.C. § 20508(b)(1) .................................. 12, 13, 14
A.R.S. § 16-101(A)............................................ 7, 15, 17
A.R.S. § 16-121(A)............................................ 7, 15, 17
A.R.S. § 16-121.01...................................... 7, 15, 17, 25
A.R.S. § 16-166(F) ............................................ 2, 15, 17
A.R.S. § 16-452............................................................. 5
Rules
Fed. R. Civ. P. 24 ....................................................... 26
Fed. R. Civ. P. 60(b) ............... 10, 12, 20, 23, 25, 26, 27
Other Authorities
2019 Ariz. Elections Procedures Manual ................... 5
2025 Ariz. Elections Procedures Manual ................. 11
Ariz. Op. Att’y Gen. No. I13-011, available at 2013
WL 5676943 ............................................................. 3
Ariz. Op. Att’y Gen. No. I24-015, available at 2024
WL 4357383 ........................................................... 10
House Bill 2492 (2022) .................................. 6, 7, 8, 25
League of United Latin American Citizens et al. v.
Hobbs et al., D. Ariz. No. 22-cv-519, Dkt. #6 (Apr.
5, 2022); Dkt. #19 (Apr. 13, 2022) ....................... 8, 9
ix
League of United Latin American Citizens of Arizona
et al. v. Reagan et al., D. Ariz. No. 17-cv-4102, Dkt.
#57 (Apr. 5, 2022); Dkt. #68 (Apr. 13, 2022) ....... 8, 9
Mi Familia Vota et al. v. Fontes et al., D. Ariz. No. 22cv-509, Dkt. #364 (May 8, 2023), Dkt. #367 and
#369 (May 15, 2023); Dkt. #390, 391, 393, 394, 395,
396, 397, 399, and 400 (June 5, 2023) ..................... 9
Necessary, Black’s Law Dictionary (6th ed. 1990).... 16
INTRODUCTION
The State of Arizona and its Attorney General file
this brief to defend Arizona’s authority to require that
a person who seeks to register to vote using Arizona’s
form prove that he or she is a citizen of the United
States. The State and Attorney General also write to
address how federal consent decrees should be
modified when underlying state law changes.
Below, the Ninth Circuit held that the National
Voter Registration Act “does not let Arizona require”
proof of citizenship when registering voters for federal
elections with state-created registration forms. RNC
App.50a–52a. 1 This holding misinterprets the Act.
This Court should reverse the Ninth Circuit on this
point.
The Ninth Circuit also held that a 2018 consent
decree “limits the ability of executive officers in
Arizona to enforce” a state law enacted in 2022, which
requires rejecting state registration forms when proof
of citizenship is absent. RNC App.47a–49a. This
holding is correct, at least for now. The consent decree
is a binding injunction, and parties to the decree (and
affected non-parties when appropriate) may seek to
vacate or modify it given the subsequent change in
Arizona’s law.
1 This brief relies on the appendix to the RNC’s petition.
2
STATEMENT OF THE CASE
A. From 2013 to 2018, Arizona officials rejected
State Forms unaccompanied by proof of
citizenship, but not Federal Forms.
Arizona’s Constitution provides that only U.S.
citizens may vote. Ariz. Const. art. 7, § 2(A). Arizona’s
Constitution also directs lawmakers to enact laws to
“secure the purity of elections” and “guard against
abuses” of the right to vote. Id. art. 7, § 12.
In 2004, Arizona enacted Proposition 200,
requiring people who register to vote in Arizona to
provide “satisfactory evidence of United States
citizenship.” A.R.S. § 16-166(F). 2
But in 2013, this Court held that the National
Voter Registration Act partially preempted Arizona’s
proof-of-citizenship requirement. Because of the Act,
people who register to vote in Arizona using the
federal mail registration form (the “Federal Form”)
need not satisfy Arizona’s proof-of-citizenship
requirement to vote in federal elections. See Arizona
v. Inter Tribal Council of Arizona, Inc., 570 U.S. 1, 9–
20 (2013).
The Court’s ruling did not, however, preclude
Arizona from requiring proof of citizenship to vote in
state elections. This is because the National Voter
Registration Act governs registration for “federal
elections.” Id. at 5 (quoting Young v. Fordice, 520 U.S.
273, 275 (1997)).
2 This brief uses the shorthand term “proof of citizenship,” but
the more precise term is “satisfactory evidence of citizenship.”
3
Nor did the Court’s ruling preclude Arizona from
requiring proof of citizenship for applicants using
Arizona’s voter registration form (the “State Form”).
Rather, the Court specified that “state-developed
forms may require information the Federal Form does
not” and “can be used to register voters in both state
and federal elections.” Id. at 12.
After the Court’s ruling, Arizona’s Attorney
General issued guidance on how to apply Arizona’s
proof-of-citizenship requirement. See Ariz. Op. Att’y
Gen. No. I13-011, available at 2013 WL 5676943. As
a result, election officials in Arizona adopted the
following voter registration practice:
•
Applicants with proof of citizenship were
registered for federal and state elections
(assuming they were otherwise eligible),
regardless of whether they used the Federal or
State Form.
•
Applicants who used the Federal Form without
proof of citizenship were registered only for
federal elections.
•
Applicants who used the State Form without
proof of citizenship were not registered for any
elections.
See RNC App.193a. The following chart summarizes
this practice:
4
Practice after Supreme Court decision (2013)
Applicant used
Federal Form:
Applicant used
State Form:
Proof of
citizenship:
Registered for
federal and
state elections
Registered for
federal and
state elections
No proof of
citizenship:
Registered for
federal
elections only
Not registered
at all
B. In 2018, Arizona officials agreed to a consent
decree to treat Federal and State Forms the
same.
In 2018, Arizona’s Secretary of State and
Maricopa County’s Recorder agreed to a consent
decree in League of United Latin American Citizens of
Arizona et al. v. Reagan et al., D. Ariz. No. 17-cv-4102.
RNC App.193a, 474a–494a. The consent decree
settled allegations that Arizona officials were
violating the U.S. Constitution by treating applicants
who used State Forms differently from those who used
Federal Forms. RNC App.474a–475a.
Arizona’s Secretary of State denied that Arizona’s
voter registration practices were unconstitutional or
otherwise illegal. RNC App.476a. Nevertheless, the
Secretary and Maricopa County’s Recorder agreed to
a consent decree to “treat[] Federal Form and State
Form applications the same,” believing that doing so
was “consistent with the provisions of Arizona law”
that existed at the time. RNC App.476a.
5
Arizona’s Secretary of State also agreed to revise
Arizona’s Elections Procedures Manual in accordance
with the consent decree. RNC App.483a–484a. 3 Thus,
the 2019 Manual followed the consent decree. See
2019 Ariz. Elections Procedures Manual at 6–8. 4 In a
section named “Continuing Jurisdiction,” the consent
decree specified: “The Court shall retain jurisdiction
over this action until December 31, 2020 to enter such
further relief as may be necessary for the effectuation
of the terms of this Consent Decree.” RNC App.494a.
As a result of the consent decree, Arizona officials
began treating Federal Form users and State Form
users the same. For all applicants who did not submit
proof of citizenship, election officials consulted motor
vehicle data, and the results determined next steps:
•
If proof of citizenship was found, the person
was registered for federal and state elections.
•
If evidence of non-citizenship was found, the
person was not registered for any elections
(absent proof of citizenship).
•
If nothing was found, the person was
registered only for federal elections.
In Arizona, the Secretary of State issues an Elections
Procedures Manual every two years upon approval of the
Governor and Attorney General. A.R.S. § 16-452. Current and
prior Manuals are available at https://azsos.gov/elections/aboutelections/elections-procedures/epm.
3
4
The 2019 Manual is specifically available at
https://apps.azsos.gov/election/files/epm/2019_elections_procedu
res_manual_approved.pdf.
6
See RNC App.193a–194a, 484a–492a. The following
chart summarizes this practice:
Practice after consent decree (2018)
Applicant used
Federal Form:
Applicant used
State Form:
Proof of
citizenship:
Registered for
federal and
state elections
Registered for
federal and
state elections
Evidence of
non-citizenship:
Not registered
at all (absent
contrary proof)
Not registered
at all (absent
contrary proof)
No proof
either way:
Registered for
federal
elections only
Registered for
federal
elections only
C. In 2022, an Arizona law required rejection of
State Forms unaccompanied by proof of
citizenship, contrary to the consent decree.
Arizona lawmakers enacted House Bill 2492 in
2022. RNC App.234a–236a. As a result, a legal
premise underlying the 2018 consent decree became
untrue. Whereas Arizona’s Secretary of State and
Maricopa County’s Recorder had agreed to the consent
decree on the understanding that it was “consistent
with the provisions of Arizona law,” RNC App.476a,
House Bill 2492 created unmistakable conflict
between the consent decree and Arizona law.
7
Among other things, House Bill 2492:
•
Lists proof of citizenship as a voter eligibility
requirement and a registration requirement in
A.R.S. §§ 16-101(A) and 16-121(A);
•
Requires election officials to reject State
Forms when proof of citizenship is absent (and
criminalizes the knowing failure to do so) in
A.R.S. § 16-121.01(C); and
•
Requires election officials to verify citizenship
for applicants using Federal Forms when proof
of citizenship is absent as set forth in A.R.S.
§ 16-121.01(D)–(G).
See RNC App.194a–197a, 457a–461a. 5
According to the sponsor of House Bill 2492, the
law was enacted largely as a response to the 2018
consent decree, because the consent decree had
allowed more voters to register for federal elections
without proof of citizenship. RNC App.234a–235a.
It is clear that House Bill 2492 would require
Arizona officials to depart from the 2018 consent
decree when evaluating applicants who use the State
Form without proof of citizenship.
Indeed, as
explained below, Arizona officials have in fact been
departing from the consent decree since this Court
partially stayed the injunction in this case. The
following chart identifies this departure in the bottomright box:
5 The RNC’s appendix appears not to contain A.R.S. § 16-121(A)
even though it was amended in relevant part by House Bill 2492.
8
Practice after Supreme Court stay (2024)
Applicant used
Federal Form:
Applicant used
State Form:
Proof of
citizenship:
Registered for
federal and
state elections
Registered for
federal and
state elections
Evidence of
non-citizenship:
Not registered
at all (absent
contrary proof)
Not registered
at all (absent
contrary proof)
No proof
either way:
Registered for
federal
elections only 6
Not registered
at all
D. The district court declared that “Arizona
must abide by” the consent decree and then
entered an injunction.
In the litigation below, a group of plaintiffs moved
to transfer their lawsuit to the judge who entered the
2018 consent decree (Judge Campbell). See League of
United Latin American Citizens of Arizona et al. v.
Reagan et al., D. Ariz. No. 17-cv-4102, Dkt. #57 (Apr.
5, 2022); League of United Latin American Citizens et
al. v. Hobbs et al., D. Ariz. No. 22-cv-519, Dkt. #6 (Apr.
5, 2022). They explained that their new lawsuit was
closely related to the prior case underlying the consent
6 Under House Bill 2492 as enacted, Federal Form users who
fall within this box (no citizenship proof either way) would be not
only limited to federal elections, but also prevented from voting
for President and voting by mail. But those two additional limits
were enjoined and are not the subject of the RNC’s petition.
9
decree. In their words, the new lawsuit “involves the
same parties,” “directly raises the same claims,” and
“necessarily requires consideration of the underlying
consent decree.” Id.
Judge Campbell declined the transfer.
He
reasoned that, although he “approved the consent
decree” in the prior case, he “did not otherwise address
the merits” and the case “has long been closed.”
League of United Latin American Citizens of Arizona
et al. v. Reagan et al., D. Ariz. No. 17-cv-4102, Dkt. #68
(Apr. 13, 2022); League of United Latin American
Citizens et al. v. Hobbs et al., D. Ariz. No. 22-cv-519,
Dkt. #19 (Apr. 13, 2022). In his view, the judge who
had been assigned the new lawsuit (Judge Bolton)
would be the one to consider “the relationship between
the terms of the consent decree and the challenged
statute.” Id.
Judge Bolton consolidated multiple lawsuits and
heard cross-motions for partial summary judgment.
See Mi Familia Vota et al. v. Fontes et al., D. Ariz. No.
22-cv-509, Dkt. #364 (May 8, 2023), Dkt. #367 and
#369 (May 15, 2023); Dkt. #390, 391, 393, 394, 395,
396, 397, 399, and 400 (June 5, 2023). None of these
motions, however, asked the court to settle the
relationship between the 2018 consent decree and
Arizona’s new law requiring proof of citizenship for
State Form users. Yet the court decided the issue in
its summary judgment ruling. RNC App.365a–366a,
381a, 383a.
Specifically, the court ruled that the 2018 consent
decree “precludes Arizona from enforcing” its new law
requiring proof of citizenship for State Form users.
RNC App.381a. The court reasoned that, although
10
federal courts generally may set aside consent decrees
under Rule 60(b), the 2018 consent decree was “never
set aside” by “Judge Campbell.” RNC App.365a–366a.
Thus, the court declared that “Arizona must abide by”
the consent decree and “register otherwise eligible
State Form users” for federal elections, even when
proof of citizenship is absent. RNC App.383a.
In a footnote, the district court suggested that the
National Voter Registration Act would lead to the
same result. See RNC App.366a–367a.
Accordingly, the district court permanently
enjoined Arizona officials from enforcing the new state
law that requires rejecting State Forms when proof of
citizenship is absent. RNC App.428a–429a.
E. This Court
injunction.
stayed
the
district
court’s
A Ninth Circuit motions panel stayed the district
court’s injunction in part, thus allowing Arizona
officials to implement the new state law that requires
proof of citizenship for State Form users. RNC
App.387a. But then a Ninth Circuit merits panel
vacated the stay. RNC App.393a–394a.
This Court sided with the Ninth Circuit motions
panel and restored the partial stay of the injunction.
RNC App.426a. As a result, Arizona officials have
been implementing the new state law by rejecting
State Forms when proof of citizenship is absent. For
example, Arizona’s Attorney General issued guidance
on how to apply the law. See, e.g., Ariz. Op. Att’y Gen.
No. I24-015, available at 2024 WL 4357383
(answering questions from Secretary of State).
11
Arizona’s Secretary of State issued similar guidance in
the most recent Elections Procedures Manual. See
2025 Ariz. Elections Procedures Manual at 4 & n.5. 7
F. The Ninth Circuit affirmed the district
court’s injunction, citing the consent decree
and the National Voter Registration Act.
After this Court partially stayed the injunction,
the Ninth Circuit merits panel affirmed the injunction
in relevant part. The panel majority reasoned that the
2018 consent decree “limits the ability of executive
officers in Arizona to enforce” the new state law that
requires rejecting State Forms unaccompanied by
proof of citizenship. RNC App.47a–49a. Like the
district court, the majority reasoned that the consent
decree “has never been set aside.” RNC App.48a. The
majority thus concluded that the consent decree
“remains an enforceable, binding final judgment” that
“bars Arizona election officials from enforcing” the
contrary state law. RNC App.48a–49a.
The panel majority also reasoned that,
alternatively, the National Voter Registration Act
“does not let Arizona require” proof of citizenship for
people who use State Forms to register for federal
elections. RNC App.50a–52a. The majority cited two
parts of the Act to support this view. First, according
to the majority, proof of citizenship is not “necessary
to enable the appropriate State election official to
assess the eligibility of the applicant.” RNC App.50a
7
The 2025 Manual is specifically available
https://apps.azsos.gov/election/files/epm/2025/ElectionProcedures-Manual-2025--FINAL-12-22-25.pdf.
at
12
(quoting 52 U.S.C. § 20508(b)(1)). Second, according
to the majority, requiring proof of citizenship for State
Form users would render the State Form not
“equivalent” to the Federal Form. RNC App.51a
(quoting 52 U.S.C. § 20506(a)(6)(A)(ii)).
Judge Bumatay dissented. RNC App.103a–116a.
In his view, interpreting the 2018 consent decree to
preclude enforcement of Arizona’s subsequent law
“raises alarming separation-of-powers concerns.”
RNC App.104a. He also concluded that a motion to
vacate or modify the consent decree under Rule 60(b)
was not required. RNC App.108a–109a.
Judge Bumatay also disagreed with the majority’s
reading of the National Voter Registration Act. In his
view, Arizona permissibly determined that proof of
citizenship is “necessary to enable the appropriate
State election official to assess the eligibility of the
applicant.” RNC App.110a–114a (quoting 52 U.S.C. §
20508(b)(1)). And, in his view, the State Form is
sufficiently “equivalent” to the Federal Form despite
the proof-of-citizenship requirement. RNC App.114a–
116a (quoting 52 U.S.C. § 20506(a)(6)(A)(ii)). He also
reasoned that, even if the State Form were not
“equivalent” to the Federal Form, that would not
justify the sweeping injunction that the district court
entered. RNC App.116a.
Eleven judges dissented from the denial of
rehearing en banc. RNC App.155a–187a.
SUMMARY OF ARGUMENT
The National Voter Registration Act does not
prohibit Arizona from requiring proof of citizenship for
13
State Form applicants. The Ninth Circuit panel
majority erred in holding otherwise. In Arizona, proof
of citizenship is “necessary to enable” election officials
to “assess the eligibility” of State Form applicants. 52
U.S.C. § 20508(b)(1). And even if State Forms are not
“equivalent” to Federal Forms for purposes of public
assistance agencies’ duties to distribute registration
forms under 52 U.S.C. § 20506(a)(6)(A), Arizona could
still require proof of citizenship for State Form
applicants.
Unlike the National Voter Registration Act, the
2018 consent decree does limit the ability of election
officials in Arizona to require proof of citizenship for
State Form applicants. The Ninth Circuit panel
majority was correct on this point. The consent decree
binds the defendants in that case until it is vacated or
modified. The separation-of-powers concern raised by
the Ninth Circuit panel dissent is misplaced because
parties to the consent decree (and affected non-parties
when appropriate) may seek to vacate or modify the
decree given the subsequent change in Arizona’s law.
ARGUMENT
I.
The National Voter Registration Act does
not prohibit Arizona from requiring proof of
citizenship for State Form users.
As this Court previously explained, State Forms
“may require information the Federal Form does not”
and “can be used to register voters in both state and
federal elections.” Arizona v. Inter Tribal Council of
Arizona, Inc., 570 U.S. 1, 12 (2013).
Contrary to that explanation, the Ninth Circuit
misread the National Voter Registration Act to
14
prohibit Arizona from requiring proof of citizenship for
State Form applicants for federal elections. This
Court should correct the misreading.
A. In Arizona, proof of citizenship is
“necessary to enable the appropriate
State election official” to assess
eligibility of State Form users.
1. Under the National Voter Registration Act,
States must “accept and use” the mail voter
registration form prescribed by the Federal Election
Commission (known as the Federal Form) for federal
elections. 52 U.S.C. § 20505(a)(1). In addition, States
may “develop and use” their own mail voter
registration form for federal elections if it meets the
criteria in § 20508(b). 52 U.S.C. § 20505(a)(2). These
criteria include requiring “only” such information as is
“necessary to enable the appropriate State election
official to assess the eligibility of the applicant and to
administer voter registration and other parts of the
election process.” 52 U.S.C. § 20508(b)(1).
When evaluating whether information is
“necessary to enable” State election officials to “assess
the eligibility” of registration applicants, 52 U.S.C.
§ 20508(b)(1), federal courts must remember a basic
truth: States define eligibility. The Elections Clause
“empowers Congress to regulate how federal elections
are held, but not who may vote in them.” Inter Tribal
Council of Arizona, 570 U.S. at 16.
Here, Arizona has defined eligibility in a way that
makes clear: proof of citizenship is “necessary to
enable” election officials to “assess the eligibility” of
State Form applicants. In 2004, Arizona required
15
election officials to reject all voter registration forms
that lack proof of citizenship. A.R.S. § 16-166(F). And
in 2022, after this Court’s intervening decision in Inter
Tribal Council of Arizona, Arizona took additional
steps including:
•
Specifying that proof of citizenship is, itself, a
requirement for a resident to be qualified to
register to vote in A.R.S. § 16-101(A);
•
Specifying that proof of citizenship is, itself, a
component of being a qualified elector in A.R.S.
§ 16-121(A); and
•
Reiterating that State Forms must be
accompanied by proof of citizenship and that
election officials must “reject” State Forms that
lack such proof (and criminalizing the knowing
failure of election officials to do so) in A.R.S. §
16-121.01(C).
Given these statutes, an election official in
Arizona who receives a State Form needs proof of
citizenship to assess eligibility. Absent such proof, the
applicant is, by law, ineligible to register to vote.
2. The Ninth Circuit panel majority took a
puzzling route to the opposite conclusion.
The
majority first defined “necessary” as “essential,” a
word that appears nowhere in the National Voter
Registration Act. RNC App.50a. The majority then
stated that proof of citizenship is not “essential” to
assess eligibility of State Form applicants because
such applicants already must check a box attesting to
citizenship. RNC App.50a. This logic is wrong at
every turn.
16
For starters, the word “necessary” may sometimes
mean “essential,” but it may also mean “merely
important or strongly desired.” Ayestas v. Davis, 584
U.S. 28, 44 (2018).
When the National Voter
Registration Act was enacted, Black’s Law Dictionary
explained that “necessary” could, depending on
context, simply mean “useful, appropriate, suitable,
proper, or conducive to the end sought.” Necessary,
Black’s Law Dictionary (6th ed. 1990).
That more flexible definition fits here for two
reasons. First, interpreting the Act strictly to prevent
Arizona from obtaining information it needs to enforce
its voter qualifications would “raise serious
constitutional doubts.”
Inter Tribal Council of
Arizona, 570 U.S. at 17–18. The more flexible
definition of “necessary” helps avoid such doubts.
Second, another part of the Act suggests that Congress
had a more flexible definition in mind. The Act
specifies that, when someone seeks to register to vote
as part of a driver’s license application, the State may
require “only the minimum amount of information
necessary” to enable officials to assess eligibility. 52
U.S.C. § 20504(c)(2)(B)(ii). If Congress thought that
the word “necessary,” by itself, was already limited to
essential information, there would have been no need
to add the qualification “only the minimum amount.”
Regardless, even if “necessary” means “essential,”
proof of citizenship is essential to enable election
officials in Arizona to assess eligibility of State Form
applicants. This is because Arizona law makes it
essential. The Ninth Circuit panel majority ignored
basic features of Arizona law on this point, including
that (1) Arizona has long required election officials to
17
reject voter registration forms that lack proof of
citizenship, (2) Arizona has now specified that proof of
citizenship is both a voter eligibility requirement and
a registration requirement, and (3) Arizona has now
criminalized the knowing failure to reject State Forms
that lack proof of citizenship. A.R.S. §§ 16-101(A), 16121(A), 16-121.01(C), 16-166(F).
The Ninth Circuit panel majority decided instead
that a checkbox and attestation suffice to ensure that
State Form users are citizens. See RNC App.50a. But
Arizona’s lawmakers reasonably decided otherwise as
a policy matter. Indeed, Arizona long ago specified six
acceptable forms of proof of citizenship—and none is a
checkbox and attestation. A.R.S. § 16-166(F).
More fundamentally, the Ninth Circuit panel
majority asked the wrong question. The question is
not just whether proof of citizenship is necessary to
enable officials to assess whether State Form
applicants are citizens. The question is whether proof
of citizenship is necessary to enable officials to assess
whether State Form applicants are eligible as defined
by state law. Here, Arizona law specifies that proof of
citizenship is itself an eligibility requirement. A.R.S.
§§ 16-101(A), 16-121(A). The panel majority thus
failed to account for Arizona’s authority to define
eligibility.
B. Arizona may require proof of citizenship
for State Form users regardless of
whether the State Form is “equivalent”
to the Federal Form.
1. Under the National Voter Registration Act, if
a voter registration agency is also “an office that
provides service or assistance,” then the agency must
18
“distribute” a voter registration form along with each
application for service or assistance. 52 U.S.C.
§ 20506(a)(6)(A). That form must be (1) the Federal
Form or (2) “the office’s own form if it is equivalent to”
the Federal Form. Id.
Below, Ninth Circuit judges debated whether
Arizona’s State Form is “equivalent” to the Federal
Form for purposes of public assistance agencies’
duties. RNC App.51a–52a, 114a–116a. Other parties
debate the question here.
2. Truth be told, the question does not matter
here. Neither answer justifies the injunction below,
which broadly prohibited Arizona from rejecting State
Forms unaccompanied by proof of citizenship. See
RNC App.428a–429a.
The National Voter
Registration Act simply does not say that States may
use State Forms only if they are equivalent to the
Federal Form. After all, this Court has already
recognized that State Forms “may require information
the Federal Form does not,” Inter Tribal Council of
Arizona, 570 U.S. at 12, which presumably would
make them not “equivalent” in at least some cases.
And by its terms, the “equivalent” clause in
§ 20506(a)(6)(A) is not a restriction on use; it imposes
a positive obligation on state public assistance
agencies to “distribute” voter registration forms,
which may be either the Federal Form or an
“equivalent” state-created form. So if Arizona’s State
Form is not “equivalent” to the Federal Form, the
consequence under the Act is that Arizona public
assistance agencies would have to distribute the
Federal Form (or some other equivalent form).
19
Indeed, that mirrors existing practice: Arizona
and county officials already must make the Federal
Form available through all channels they use to make
the State Form available. This is because of an
injunction entered following this Court’s decision in
Inter Tribal Council of Arizona. See Gonzalez v.
Arizona, D. Ariz. No. CV-06-1268-PHX-ROS, 2013 WL
7767705, at *1 (Sept. 11, 2013).
But whether Arizona’s State Form is “equivalent”
to the Federal Form for purposes of a public assistance
agency’s duty to distribute registration forms does not
determine whether Arizona can require proof of
citizenship for State Form users. Congress knows how
to require States to “accept” specific registration forms
when it wants—as it did for the Federal Form. See 52
U.S.C. § 20505(a)(1). But no such language appears
in § 20506, entitled “Voter registration agencies.”
Moreover, the duty to distribute certain registration
forms is limited to public assistance agencies, not
Arizona as a whole. See 52 U.S.C. § 20506(a)(6)(A).
Again, Congress knows how to impose duties on the
“State” as a whole—as it did for the Federal Form. See
52 U.S.C. § 20505(a)(1).
3. The Ninth Circuit panel majority decided that
Arizona’s State Form is not “equivalent” to the Federal
Form, since it requires proof of citizenship. RNC
App.51a–52a. From that premise, the panel majority
concluded
that
Arizona’s
proof-of-citizenship
requirement for State Forms “violates” the National
Voter Registration Act. RNC App.52a.
Even assuming that the panel majority is correct
that the State Form is not “equivalent” to the Federal
Form, its conclusion does not follow. To conclude that
20
Arizona’s proof-of-citizenship requirement for State
Forms violates the National Voter Registration Act,
the panel majority must have assumed that the Act
prohibits States from using registration forms that are
not equivalent to the Federal Form. But the Act does
no such thing. Rather, “States retain the flexibility to
design and use their own registration forms.” Inter
Tribal Council of Arizona, 570 U.S. at 12. The Act
simply makes the Federal Form “a backstop” that
“guarantees that a simple means of registering to vote
in federal elections will be available.” Id.
II. The consent decree remains binding, but
parties and perhaps affected non-parties
may seek to vacate or modify it.
The Ninth Circuit panel majority was on stronger
footing when it held that a 2018 consent decree limits
the ability of officials in Arizona to require proof of
citizenship for State Form users. The consent decree
has not yet been vacated and therefore remains a
binding injunction on the defendants against whom it
was issued, even though Arizona law has materially
changed since then.
The Ninth Circuit panel dissent raised concerns
about the tension between the consent decree and
current Arizona law. The answer to those concerns is
not to undermine the validity of consent decrees, but
to use a simple and existing procedural tool: a motion
for relief under Federal Rule of Civil Procedure 60(b).
Accordingly, the Court should affirm the binding
nature of the consent decree while also making clear
that the parties to the decree (and, as appropriate,
non-parties affected by it) retain the ability to seek to
vacate or modify it.
21
A. The consent decree remains binding
unless and until it is vacated, even
though it prohibits what Arizona law
now requires.
1. As explained, in 2018 Arizona’s Secretary of
State and Maricopa County’s Recorder agreed to a
consent decree to treat Federal Forms and State
Forms the same. See Statement of the Case §§ A and
B above. The Secretary and Recorder concluded that
doing so was “consistent with the provisions of Arizona
law” that existed at the time. RNC App.476a.
But in 2022, Arizona law changed. Arizona’s
lawmakers specified that proof of citizenship is a voter
eligibility qualification and a registration requirement
and that officials must (on pain of criminal penalty)
reject State Forms unaccompanied by proof of
citizenship even though they have a different duty for
Federal Forms. See Statement of the Case § C above.
So now the consent decree is no longer consistent
with Arizona law. But it is still a federal court
injunction and “a final judgment.” Rufo v. Inmates of
Suffolk Cnty. Jail, 502 U.S. 367, 391 (1992). So the
defendants whom it binds cannot simply ignore it.
The Ninth Circuit panel majority got this point
right. The panel majority explained that the 2018
consent decree “remains an enforceable, binding final
judgment.” RNC App.48a. This was correct, as the
consent decree has not been vacated or modified. 8
8 Since this Court partially stayed the district court’s injunction
below (which was based on the consent decree), Arizona officials
22
A federal consent decree is “subject to the rules
generally applicable to other judgments and decrees.”
Rufo, 502 U.S. at 378; see also Sys. Fed’n No. 91 v.
Wright, 364 U.S. 642, 650 (1961) (“The result is all one
whether the decree has been entered after litigation or
by consent.” (quoting United States v. Swift & Co., 286
U.S. 106, 114 (1932))). Thus, if a party does not
establish reason to modify the decree, “the decree
should be enforced according to its terms.” Frew ex rel.
Frew v. Hawkins, 540 U.S. 431, 441–42 (2004).
Changes to a consent decree’s legal or factual
predicates do not justify “ignoring or defying the
decree.” O’Sullivan v. City of Chicago, 396 F.3d 843,
865 (7th Cir. 2005). Until the decree has been vacated
or modified, it remains binding. Frew, 540 U.S. at
441–42; see also Celotex Corp. v. Edwards, 514 U.S.
300, 306 (1995) (“[P]ersons subject to an injunctive
order issued by a court with jurisdiction are expected
to obey that decree until it is modified or reversed,
even if they have proper grounds to object to the
order.” (quoting GTE Sylvania, Inc. v. Consumers
Union of U.S., Inc., 445 U.S. 375, 386 (1980))).
2. The RNC argues that the consent decree must
“yield” to changed state law through review in a
collateral proceeding. RNC Cert. Reply at 10–11. But
while a decree is effective, it must be enforced
according to its terms unless a party persuades the
court to modify it. Frew, 540 U.S. at 442. Generally,
have been following Arizona law and rejecting State Forms
unaccompanied by proof of citizenship, despite the consent
decree. See Statement of the Case §§ D and E above. But if this
Court were to clarify that the consent decree remains binding,
Arizona officials would change course.
23
such modification should be sought through Federal
Rule of Civil Procedure 60(b)(5), which “encompasses
the traditional power of a court of equity to modify its
decree in light of changed circumstances.” Id. at 441.
This Court’s precedents indicate that “Rule 60(b)(5)
provides the vehicle” for such arguments. Horne v.
Flores, 557 U.S. 433, 439 (2009); see also Agostini v.
Felton, 521 U.S. 203, 215 (1997) (citing previous
precedents).
Allowing a federal consent decree to “yield” to
later-enacted state law in a collateral proceeding,
without undertaking the analysis required by Rule
60(b), risks “seriously undercutting the orderly
process of the law.” Celotex Corp., 514 U.S. at 313.
This Court has emphasized that “Rule 60(b)(5) serves
a particularly important function in what we have
termed ‘institutional reform litigation.’” Horne, 557
U.S. at 447 (citation omitted). And this Court has
developed a body of law regarding Rule 60(b)(5)
motions based on changed circumstances.
For
example, “[t]he party seeking relief bears the burden
of establishing that changed circumstances warrant
relief,” but courts must take a “flexible approach”
which “ensure[s] that responsibility for discharging
the State’s obligations is returned promptly to the
State and its officials when the circumstances
warrant.” Id. at 447, 450 (citation and quotation
marks omitted). Allowing courts to adjudicate the
continued viability of consent decrees outside of the
developed framework of Rule 60(b)(5) invites error and
inconsistency in the law. It could also encourage
forum-shopping and inconsistent decrees, if the
plaintiff seeks to enforce an injunction in the issuing
24
court and the defendant seeks to have it declared void
in another court (or vice versa).
3. The 2018 consent decree stated that the “Court
shall retain jurisdiction over this action until
December 31, 2020 to enter such further relief as may
be necessary for the effectuation of the terms of this
Consent Decree.” RNC App.494a. The RNC cites this
clause as a reason why the consent decree must yield
to the change in Arizona law. See RNC Pet. at 32. But
the clause limits the district court’s ability to grant
further relief based on the decree; it does not limit “the
life of the decree itself.” Roberts v. St. Regis Paper Co.,
653 F.2d 166, 171 (5th Cir. 1981); see also Thompson
v. HUD, 404 F.3d 821, 833 (4th Cir. 2005) (“As HUD
concedes, it has obligations under the Consent Decree
that extend well beyond the date that the court’s
jurisdiction over HUD originally was to expire.”).
The consent decree imposes duties on the parties
and does not state that those duties have an expiration
date. See RNC App.483a–94a. Thus, despite not
having jurisdiction to enter further relief, “the court
retains jurisdiction to determine whether the parties
are fulfilling their obligations under the decree.”
Roberts, 653 F.2d at 172. The consent decree remains
in force until it is modified or vacated.
B. Parties to the consent decree and
perhaps affected non-parties may seek
to vacate or modify the decree.
1. The Ninth Circuit panel dissent reasoned that
“consent decrees cannot be used to handcuff
governments in perpetuity.” RNC App.105a. The
State and its Attorney General agree with this
25
principle. For this reason, there must be a way to seek
vacatur or modification of the 2018 consent decree,
especially given the change in Arizona law.
And there is. The clearest option is for one of the
governmental parties to the consent decree—Arizona’s
Secretary of State or Maricopa County’s Recorder—to
seek relief from the decree under Federal Rule of Civil
Procedure 60(b). Either party would have a strong
case for relief. Now that Arizona law requires them to
do something the consent decree prohibits, they are
between a rock and a hard place. Indeed, a key
premise of the consent decree was that its terms were
consistent with Arizona law. RNC App.476a. This
premise is no longer true, given the enactment of
House Bill 2492. Continuing to apply the decree may
well be “no longer equitable,” and the new state law
may well be a “reason that justifies relief.” Fed. R. Civ.
P. 60(b)(5), (6); see, e.g., Foster v. Stanek, 689 F. Supp.
3d 975, 983–89 (D. Kan. 2023) (granting relief from
consent judgment based on change in state law).
The subsequent change in Arizona law is not the
only consideration, however. After all, the consent
decree settled allegations that treating State Forms
and Federal Forms differently was unconstitutional.
RNC App.474a–475a. And now Arizona law expressly
requires treating State Forms and Federal Forms
differently. A.R.S. § 16-121.01(C)–(F). So a court that
decides whether to modify or vacate the decree may
also need to consider whether doing so would create
constitutional problems.
2. The Ninth Circuit panel dissent pointed out
that a Rule 60(b) motion for relief is generally
available only to parties in the underlying case. RNC
26
App.108a. But non-parties who are affected by a
judgment may become parties by intervening under
Federal Rule of Civil Procedure 24. For example, if
Arizona’s Legislative Leaders believe that the 2018
consent decree is thwarting current Arizona law, they
may be able to intervene if they meet the requirements
of Rule 24 (and any other applicable requirements).
By analogy, consider Horne v. Flores, 557 U.S. 433
(2009). The district court in that case entered
injunctions against Arizona officials when Arizona’s
Legislature was “not then a party.” Id. at 441–42. The
principal defendants were “siding with the plaintiffs”
in ways that affected Arizona’s Legislature, so
Arizona’s Senate President and House Speaker moved
to intervene “as representatives of their respective
legislative bodies.” Id. at 443. After intervening, they
sought relief under Rule 60(b). Id. Although the
district court denied their motion (and the Ninth
Circuit affirmed), this Court reversed. Id. at 443–45.
3. Here, no one has sought Rule 60(b) relief from
the 2018 consent decree.
This omission was
understandable given the procedural history below.
But the absence of Rule 60(b) analysis renders vacatur
or modification of the decree premature.
As explained, some plaintiffs moved to transfer
their lawsuit to the judge who entered the 2018
consent decree, because their lawsuit involved the
same parties and the same claims that led to the
consent decree and would require consideration of the
decree. See Statement of the Case § D above. The
judge declined the transfer, reasoning that another
judge would consider the relationship between the
consent decree and the new Arizona law. Id.
27
Then the other judge decided the issue at a time
no one asked. None of the motions for summary
judgment asked the court to settle the relationship
between the 2018 consent decree and Arizona’s new
law requiring proof of citizenship for State Form
users. See Statement of the Case § D above. But the
court decided the issue on summary judgment. Id.
In these circumstances, it is understandable why
parties did not seek relief from the 2018 consent
decree under Rule 60(b). The judge who entered the
decree seemed to suggest that he was not the right
judge to ask. And the judge who then decided the
relationship between the consent decree and Arizona’s
new law did so at a time no one asked, without the
benefit of briefing that might have explained the
importance of Rule 60(b) analysis.
Even so, the absence of Rule 60(b) analysis means
that the 2018 consent decree remains binding for now.
As explained, the Rule 60(b) procedure exists for good
reason, and ignoring it risks “seriously undercutting
the orderly process of the law.” Celotex Corp., 514 U.S.
at 313. The Court should affirm that the 2018 consent
decree remains binding so that parties (and affected
non-parties as appropriate) will know to pursue Rule
60(b) relief if they wish.
CONCLUSION
The Court should reverse the judgment of the
court of appeals in part.
28
Respectfully submitted,
KRISTIN K. MAYES
Attorney General
DANIEL C. BARR
Chief Deputy
Attorney General
JOSHUA D. BENDOR
Solicitor General
Counsel of Record
HAYLEIGH S. CRAWFORD
JOSHUA M. WHITAKER
KATHRYN E. BOUGHTON
TIMOTHY E. D. HORLEY
Assistant Attorneys
General
OFFICE OF THE ARIZONA
ATTORNEY GENERAL
2005 N. Central Ave.
Phoenix, AZ 85004
(602) 542-8958
Joshua.Bendor@azag.gov
Counsel for Respondents State of Arizona and
Arizona Attorney General Kristin K. Mayes
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.