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

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 OF KANSAS, ALABAMA, AND

24 OTHER STATES AS AMICI CURIAE

IN SUPPORT OF PETITIONER

STEVE MARSHALL

Attorney General

of Alabama

KRIS W. KOBACH

Attorney General

of Kansas

A. BARRETT BOWDRE

Solicitor General

DWIGHT CARSWELL

Acting Solicitor General

Counsel of Record

ROBERT M. OVERING

Principal Deputy

Solicitor General

MISTY S. FAIRBANKS

MESSICK

Assistant Attorney General

RYAN J. OTT

Assistant Solicitor

General

Office of the Kansas

Attorney General

120 S.W. 10th Ave.

Topeka, KS 66612

(785) 296-2215

dwight.carswell@ag.ks.gov

Office of the Alabama

Attorney General

501 Washington Ave.

Montgomery, AL 36104

(334) 242-7300

barrett.bowdre@AlabamaAG.gov

i

TABLE OF CONTENTS

Page

TABLE OF CONTENTS ............................................. i

TABLE OF CITED AUTHORITIES .......................... ii

INTERESTS OF AMICI STATES ............................. 1

SUMMARY OF THE ARGUMENT ........................... 4

ARGUMENT .............................................................. 5

I.

The Ninth Circuit’s interpretation of the

NVRA was wrong and violated basic

principles of federalism................................. 7

II.

A consent decree cannot block a State’s

sovereign authority to legislate .................. 11

III. Congress did not and cannot force

States to keep noncitizens on their voter

rolls .............................................................. 16

A.

The 90-day provision does not bar

the removal of noncitizens .................. 17

B.

If the 90-day provision bars the

removal of noncitizens, then it is

unconstitutional .................................. 24

CONCLUSION ......................................................... 28

ii

TABLE OF CITED AUTHORITIES

Page(s)

Cases:

Alabama-Quassarte Tribal Town v.

United States,

899 F.3d 1121 (10th Cir. 2018)............................... 8

Arcia v. Detzner,

908 F. Supp. 2d 1276 (S.D. Fla. 2012), rev’d,

746 F.3d 1273 (11th Cir. 2014), superseded,

772 F.3d 1335 (11th Cir. 2014)......18, 19, 20, 23, 25

Arcia v. Detzner,

No. 12-22282-CIV, 2015 WL 11198230

(S.D. Fla. Feb. 12, 2015) ....................................... 26

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

570 U.S. 1 (2013)................1, 5, 7, 10, 11, 17, 24, 27

Ayestas v. Davis,

584 U.S. 28 (2018)............................................... 8, 9

Bell v. Marinko,

367 F.3d 588 (6th Cir. 2004)................................. 23

Bluman v. Fed. Election Comm’n,

800 F. Supp. 2d 281 (D.D.C. 2011) ................... 6, 16

Brnovich v. Democratic Nat’l Comm.,

594 U.S. 647 (2021)........................................... 3, 26

Burdick v. Takushi,

504 U.S. 428 (1992)............................................... 24

Cabell v. Chavez-Salido,

454 U.S. 432 (1982)........................................... 6, 16

iii

Carrington v. Rash,

380 U.S. 89 (1965)......................................... 1, 5, 24

Chisom v. Louisiana ex rel. Landry,

116 F.4th 309 (5th Cir. 2024) ............................... 12

Commissioner v. Tellier,

383 U.S. 687 (1966)................................................. 8

Crawford v. Marion Cnty. Election Bd.,

553 U.S. 181 (2008)................................................. 1

Delta Air Lines v. August,

450 U.S. 346 (1981)............................................... 19

Fish v. Schwab,

957 F.3d 1105 (10th Cir. 2020)........................... 4, 7

Frew v. Hawkins,

540 U.S. 431 (2004)......................................... 13, 14

Gomez v. United States,

490 U.S. 858 (1989)............................................... 27

Gregory v. Ashcroft,

501 U.S. 452 (1991)............................................... 10

Horne v. Flores,

557 U.S. 433 (2009)......................................... 12, 13

Husted v. A. Philip Randolph Inst.,

584 U.S. 756 (2018)............................................... 21

Jackson v. Los Lunas Cmty. Program,

880 F.3d 1176 (10th Cir. 2018)............................. 12

Kasper v. Bd. of Election Comm’rs of the

City of Chicago,

814 F.2d 332 (7th Cir. 1987)................................. 13

iv

Keith v. Volpe,

118 F.3d 1386 (9th Cir. 1997).......................... 14-15

League of Women Voters of Mich. v. Benson,

No. 2:17-CV-14148, 2019 WL 8106156

(E.D. Mich. Feb. 1, 2019) ...................................... 15

Loc. No. 93, Int’l Ass’n of Firefighters, AFL-CIO

C.L.C. v. City of Cleveland,

478 U.S. 501 (1986)............................................... 15

McCulloch v. Maryland,

17 U.S. 316 (1819)................................................... 8

Nw. Env’t Advocates v. EPA,

340 F.3d 853 (9th Cir. 2003)................................. 13

Oregon v. Mitchell,

400 U.S. 112 (1970)................................................. 5

Purcell v. Gonzalez,

549 U.S. 1 (2006)................................................. 1, 6

Reynolds v. Sims,

377 U.S. 533 (1964)............................................... 16

Shelby County v. Holder,

570 U.S. 529 (2013)............................................... 12

State v. Prentiss,

786 P.2d 932 (Ariz. 1989) ..................................... 13

Trump v. Barbara,

146 S. Ct. 2438 (2026)........................................... 16

United States v. Coombs,

37 U.S. 72 (1838)................................................... 27

United States v. Florida,

870 F. Supp. 2d 1346 (N.D. Fla. 2012) ..... 18, 20, 23

v

United States v. Gradwell,

243 U.S. 476 (1917)............................................... 11

United States v. Junction City Sch. Dist.,

14 F.4th 658 (8th Cir. 2021) ................................. 16

Va. Coal. for Immigrant Rights v. Beals,

803 F. Supp. 3d 454 (E.D. Va. 2025) .................... 22

Welker v. Clarke,

239 F.3d 596 (3d Cir. 2001) .................................. 20

Statutes & Other Authorities:

U.S. Const. amend. XVII ............................................ 5

U.S. Const. art. I ...................................................... 18

U.S. Const. art. I, § 2, cl. 1 ......................................... 5

U.S. Const. art. III...................................................... 5

18 U.S.C. § 1015(f).................................................... 22

18 U.S.C. § 611 ......................................................... 22

26 U.S.C. § 162(a) ....................................................... 8

52 U.S.C. § 20501 ..................................................... 16

52 U.S.C. § 20504(c)(2)(C)(i) .................................... 22

52 U.S.C. § 20505(a)(2) ........................................ 7, 10

52 U.S.C. § 20506(a)(6)(A)(i)(I) ................................ 22

52 U.S.C. § 20506(a)(6)(A)(ii) ..................................... 9

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

52 U.S.C. § 20507(3) ................................................. 23

52 U.S.C. § 20507(a)(1) ........................................ 9, 23

vi

52 U.S.C. § 20507(a)(3) .....................18, 19, 20, 22, 23

52 U.S.C. § 20507(a)(4) ...................................... 17, 23

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

52 U.S.C. § 20507(b)(2) ............................................ 20

52 U.S.C. § 20507(c)(1) ....................................... 17, 21

52 U.S.C. § 20507(c)(2) ........................... 18, 19, 20, 23

52 U.S.C. § 20507(c)(2)(A) .................................. 17, 20

52 U.S.C. § 20507(c)(2)(B)(i) .................................... 21

52 U.S.C. § 20507(d)(1) ...................................... 17, 21

52 U.S.C. § 20507(d)(2) ............................................ 17

52 U.S.C. § 20507(d)(2)(B) ................................. 16, 21

52 U.S.C. § 20507(e) ................................................. 21

52 U.S.C. § 20508(b) ............................................. 7, 10

52 U.S.C. § 20508(b)(1) .......................................... 7, 9

52 U.S.C. § 20508(b)(2)(A)........................................ 22

52 U.S.C. § 20511(2)(B) ............................................ 25

Ariz. Const. art. IV, pt. 1, § 1 ............................. 13, 15

Ariz. Const. art. VII, § 2 ............................................. 6

Fed. R. Civ. P. 60(b)(5) ............................................. 12

H.B. 2243 .................................................................... 1

H.B. 2492 ...................................................... 1, 2, 6, 14

La. Stat. Ann. § 18:104(D)(2) ..................................... 4

Miss. Code. Ann. § 23-15-15....................................... 4

vii

N.H. Rev. Stat. Ann. § 654:12 .................................... 4

Rule 19 of the Federal Rules of Civil Procedure ....... 8

Wyo. Stat. Ann. § 22-3-102(a)(i)................................. 4

1

INTERESTS OF AMICI STATES

Amici curiae States of Kansas, Alabama, Alaska,

Arkansas, Florida, Georgia, Idaho, Indiana, Iowa,

Kentucky, Louisiana, Mississippi, Missouri, Montana,

Nebraska, New Hampshire, Ohio, Oklahoma, Pennsylvania, South Carolina, South Dakota, Tennessee,

Texas, Utah, West Virginia, and Wyoming have a vital interest in protecting the integrity of their elections. “Voter fraud drives honest citizens out of the

democratic process and breeds distrust of our government.” Purcell v. Gonzalez, 549 U.S. 1, 4 (2006) (per

curiam). The fraud of noncitizen voting strikes at the

heart of our democracy, and there can be “no question

about the legitimacy or importance of [a] State’s interest in counting only the votes of eligible voters.” Crawford v. Marion Cnty. Election Bd., 553 U.S. 181, 196

(2008) (plurality op.). While the Constitution leaves

“no doubt” that States decide who is eligible to vote,

Carrington v. Rash, 380 U.S. 89, 91 (1965), their eligibility rules have “little value” unless States also have

“the power to enforce” them, Arizona v. Inter Tribal

Council of Arizona, Inc., 570 U.S. 1, 17 (2013).

This case presents yet another attack by activist

groups on a State’s efforts to enforce citizenship as a

requirement to vote. In 2022, the Arizona Legislature

passed H.B. 2492 and H.B. 2243 to help safeguard Arizona’s elections. Adopting Plaintiffs’ strained reading

of the National Voter Registration Act (NVRA), the

Ninth Circuit gutted these commonsense enactments.

It held that the NVRA, which requires States to maintain clean voter rolls, actually preempts Arizona’s

measures to keep ineligible noncitizens off its voter

rolls.

2

Compounding its errors, the Ninth Circuit held

that a 2018 consent decree between an activist organization and certain Arizona executive officers prohibited the enforcement of H.B. 2492’s requirement that

state-form registrations lacking proof of citizenship be

rejected, essentially making the statute void upon enactment. This reasoning undermined the Arizona Legislature’s ability to perform its constitutional prerogative of enacting enforceable law. The Ninth Circuit’s

holding conflicts with basic principles of constitutional law and federalism and with caselaw cautioning about the dangers and limits of consent decrees.

Voting by noncitizens—whether lawfully present

or not—is a real issue. States across the country have

identified, and in many instances prosecuted, numerous noncitizens who have registered or tried to register. 1 Amicus State of Kansas has charged three

1 Mich Dep’t of Att’y Gen., AG Nessel Announces Charges

Against 5 Non-Citizens for Voting in 2024 Elections in Michigan

(Aug. 13, 2026), https://www.michigan.gov/ag/news/press-releases/2026/08/13/ag-nessel-announces-charges-against-5-noncitizens-for-voting-in-2024-elections-in-michigan; N.H. Dep’t of

Justice, Press Release: Non-U.S. Citizen Arrested for Wrongful

Voting

in

New

Hampshire

(July

22,

2025),

https://www.doj.nh.gov/news-and-media/non-us-citizen-arrested-wrongful-voting-new-hampshire; Dareh Gregorian &

Jane C. Trimm, 6,600 Noncitizens Were Registered to Vote in N.J.

Because of a ‘Software Error,’ Governor Says, NBC NEWS (July

21, 2026), https://www.nbcnews.com/politics/2026-election/6600noncitizens-registered-vote-nj-software-error-governor-saysrcna588524; Billal Rahman, Thousands of Potential Noncitizens

Found on Texas Voter Rolls, Newsweek (Oct. 21, 2025),

https://www.newsweek.com/thousands-of-potential-noncitizensfound-on-texas-voter-rolls-10911723; Ohio Sec’y of State, Secretary LaRose Refers Evidence of Non-Citizen Voter Registrations

to Ohio Attorney General for Potential Prosecution (Aug. 21,

3

noncitizens with voting illegally (voting without being

qualified) in recent months, 2 while federal prosecutors

in Alabama have secured multiple convictions for

voter fraud by noncitizens. 3 States must be able to exercise their prerogative to enact meaningful laws to

address noncitizen voting and to promote election integrity. States are not required to wait until such

crimes occur before acting. As this Court has observed, it “go[es] without saying that a State may take

action to prevent election fraud without waiting for it

to occur and be detected within its own borders.” Brnovich v. Democratic Nat’l Comm., 594 U.S. 647, 686

(2021). The Ninth Circuit’s erroneous opinion expands

the NVRA well beyond its plain text and threatens

2024),

https://www.ohiosos.gov/office/media-center/categories/press-releases/2024-08-21; Ga. Sec’y of State, Citizenship

Audit finds 1,634 Noncitizens Attempted to Register to Vote (Mar.

28, 2022), https://sos.ga.gov/news/citizenship-audit-finds-1634noncitizens-attempted-register-vote; Tennessee Sec’y of State,

Tennessee Secretary of State Tre Hargett Protecting the Vote in

Tennessee: Uses Enhanced SAVE Program to Identify Ineligible

Voters (Oct. 27, 2025), https://sos.tn.gov/press-releases/tennessee-secretary-of-state-tre-hargett-protecting-the-vote-in-tennessee-uses.

2 See State v. Ceballos, No. CM-2025-CR-000010 (Comanche

Cnty., Kan., Dist. Ct.); State v. Gomez, No. RN-2025-CR-000838

(Reno Cnty., Kan., Dist. Ct.); State v. Ramirez-Guerra, SG-2025CR-002459 (Sedgwick Cnty., Kan., Dist. Ct.); U.S. Dep’t of Homeland Sec., DHS Reveals New Records of Criminal Alien Who

Voted Multiple Times in Kansas Elections (Nov. 13, 2025),

https://www.dhs.gov/news/2025/11/13/dhs-reveals-new-recordscriminal-alien-who-voted-multiple-times-kansas-elections (discussing State v. Ceballos).

3 See, e.g., United States v. Homero Ramos, No. 7:26-CR-98

(N.D. Ala.); United States v. Angelica Maria Francisco, No. 3:24CR-356 (N.D. Ala.).

4

Amici States’ ability to define their political communities, police voter fraud, and legislate.

The States’ interests in these issues extend beyond

Arizona’s law. In 2020, the Tenth Circuit held that

Kansas’s proof-of-citizenship requirement was

preempted by the NVRA and unconstitutional under

the Equal Protection Clause. Fish v. Schwab, 957 F.3d

1105, 1136-44 (10th Cir. 2020), cert. denied sub nom.

Schwab v. Fish, 592 U.S. 1153 (2020). Since then,

more States have adopted proof-of-citizenship requirements. See, e.g., La. Stat. Ann. § 18:104(D)(2);

Miss. Code. Ann. § 23-15-15; N.H. Rev. Stat. Ann.

§ 654:12; Wyo. Stat. Ann. § 22-3-102(a)(i). Likewise,

States have been hamstrung by misinterpretations of

the 90-day bar, preventing commonsense voter list

maintenance for a significant and critical part of each

election cycle. See, e.g., Ala. Coal. for Immigrant Justice v. Allen, No. 2:24-cv-1254 (N.D. Ala. Oct. 16,

2024), DE90; Va. Coal. for Immigrant Rights v. Beals,

No. 1:24-cv-1178 (E.D. Va. Oct. 25, 2024), DE112.

This Court should correct the Ninth Circuit’s erroneous interpretations of the NVRA and at the same

time recognize the States’ constitutional authority to

enforce their voter qualifications.

SUMMARY OF THE ARGUMENT

The Ninth Circuit gutted Arizona’s commonsense

measures to promote election security. Out of the several errors by that court, three issues in particular go

to the heart of state sovereignty and governance.

First, the Ninth Circuit’s reading of the NVRA to

preempt Arizona’s proof-of-citizenship requirement

was wrong as a matter of statutory interpretation and

violated basic principles of federalism.

5

Second, the Ninth Circuit permitted a consent decree to undermine the authority of the Arizona Legislature to legislate. A State must be able to exercise its

constitutional prerogative to make law. The Ninth

Circuit undercut this authority by placing a consent

decree above the democratic process, silencing the

voices of Arizona’s representatives of the people.

Third, the Ninth Circuit held that Arizona could

not remove identified noncitizens from its voter rolls

within 90 days of any federal election. But the 90-day

provision does not apply to such removals. If it did, it

would be an unconstitutional burden on the power to

determine voter qualifications.

ARGUMENT

Our constitutional structure leaves “no doubt” that

the States establish the “qualifications for the exercise

of the franchise.” Carrington v. Rash, 380 U.S. 89, 91

(1965). The Constitution expressly gives States the

authority to determine voter qualifications for all federal elections. See U.S. Const art. I, § 2, cl. 1 (elections

for the U.S. House of Representatives); U.S. Const.

art. III, cl. 1 (elections for president); U.S. Const.

amend. XVII (Elections for the U.S. Senate). These

provisions make clear that Congress, even through

the NVRA, “cannot control . . . voting qualifications in

federal elections.” Inter Tribal Council, 570 U.S. at 16

(quoting Oregon v. Mitchell, 400 U.S. 112, 210 (1970)

(Harlan, J., concurring in part and dissenting in part)

(collecting cases)); id. at 29-33 (Thomas, J., dissenting) (canvassing historical support for States’ “exclusive authority to set voter qualifications and to determine whether those qualifications are satisfied”).

6

Arizona, like every other State, makes American

citizenship a qualification to vote. Ariz. Const. art.

VII, § 2. To enforce this qualification, Arizona enacted

H.B. 2492, which requires state-form registrants to

provide documentary proof of citizenship—a requirement that has been used in some form for decades. See

Purcell, 549 U.S. at 2.

The right to enforce voter qualifications, including

citizenship, implicates a core aspect of state sovereignty: “It is fundamental to the definition of our national political community that foreign citizens do not

have a constitutional right to participate in, and thus

may be excluded from, activities of democratic selfgovernment.” Bluman v. Fed. Election Comm’n, 800 F.

Supp. 2d 281, 288 (D.D.C. 2011) (Kavanaugh, J.)

(three-judge district court); see also Cabell v. ChavezSalido, 454 U.S. 432, 439-40 (1982) (“Self-government

. . . begins by defining the scope of the community of

the governed and thus of the governors as well: Aliens

are by definition those outside of this community.”).

Thus, States, as sovereigns, “may reserve participation in [their] democratic institutions for citizens of

this country.” Bluman, 800 F. Supp. 2d at 287 (quotations omitted). And States cannot be forced to trust

registrants’ mere assertions that they are United

States citizens.

The Ninth Circuit’s decision, which misinterpreted

the NVRA and improperly relied on a consent decree

to block Arizona’s attempts to restrict voting by

noncitizens, infringed on the States’ constitutional

role and should be reversed.

7

I.

The Ninth Circuit’s interpretation of

the NVRA was wrong and violated

basic principles of federalism.

The Ninth Circuit’s distortion of the NVRA follows

a similar misinterpretation by the Tenth Circuit in

2020. Fish, 957 F.3d at 1136-44. Indeed, the Tenth

Circuit went even further and held that Kansas’s

proof-of-citizenship requirement violated the Equal

Protection Clause. Id. at 1121-36. This Court should

repudiate the reasoning of these lower courts to ensure that States may enforce their voter qualifications

consistent with their authority under the Constitution.

As this Court explained in Arizona v. Inter Tribal

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

provides the States with the “flexibility to design and

use their own [voter] registration forms.” Id. at 12; 52

U.S.C. § 20505(a)(2). “These state-developed forms

may require information the Federal Form does not.”

Inter Tribal Council, 570 U.S. at 12. This Court even

specifically noted Arizona’s proof-of-citizenship requirement as an example of information required by a

state form but not the federal form. Id.

Despite this, the Ninth Circuit held that Arizona

could not require proof of citizenship as part of its

state form because under the NVRA, a registration

form “may require only such identifying 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);

see also 52 U.S.C. § 20505(a)(2) (requiring that state

forms must satisfy the criteria of § 20508(b)). The

8

Ninth Circuit wrongly concluded that proof of citizenship is not “necessary” because state-form applicants

already check a box on the state form attesting that

they are citizens. App.50a. The notion that it is

never necessary to ask a would-be voter to document

something is clearly absurd. Indeed, federal law expressly contemplates that it is necessary for a voter

to document his asserted address.

52 U.S.C.

§ 21083(b)(2)(A). Why is it necessary to provide a document proving one’s address, but not one’s citizenship?

The Ninth Circuit’s strained interpretation reads

the NVRA too stringently. While in “the strictest

sense of the term, something is ‘necessary’ only if it is

essential,” the term is commonly used “more loosely.”

Ayestas v. Davis, 584 U.S. 28, 44 (2018) (citing Webster’s Third New International Dictionary 1510 (1993)

and 10 Oxford English Dictionary 275-276 (2d ed.

1989)). For example, in McCulloch v. Maryland, 17

U.S. 316 (1819), this Court famously held that the

Necessary and Proper Clause does not mean “absolutely necessary.” Id. at 414-15. Similarly, a “necessary” business expense under the Internal Revenue

Code, 26 U.S.C. § 162(a), may be an expense that is

merely helpful and appropriate. See Commissioner v.

Tellier, 383 U.S. 687, 689 (1966). And a “necessary”

party under Rule 19 of the Federal Rules of Civil Procedure is one whose participation is helpful and important, though not strictly required. See AlabamaQuassarte Tribal Town v. United States, 899 F.3d

1121, 1123 (10th Cir. 2018). As Black’s Law Dictionary has put it, the term “may import absolute physical

necessity or inevitability, or it may import that which

is only convenient, useful, appropriate, suitable,

proper, or conducive to the end sought.” Ayestas, 584

9

U.S. at 44 (internal quotation marks omitted) (quoting

Black’s Law Dictionary 928 (5th ed. 1979)).

Given that the NVRA provides States with the

flexibility to design and use their own voter-registration forms, States should receive great deference in

deciding what information is “necessary” to ensure

voter qualifications. See App.110a (Bumatay, J., dissenting). The term “necessary” in 52 U.S.C.

§ 20508(b)(1) is used in conjunction with a reference

to “State election official[s]” who are to “assess the eligibility of the applicant.” States must therefore have

discretion to determine what information their election officials require to make that assessment.

Section 8 of the NVRA reinforces this point. It imposes on States the duty to “ensure that any eligible

applicant is registered to vote.” 52 U.S.C.

§ 20507(a)(1) (emphasis added). And so state election

officials must be able to request the information that

they find necessary to determine whether each and

every applicant is “eligible.” Even if a mere attestation

of citizenship were sufficient to ensure that most applicants are qualified, States can reasonably conclude

that an attestation alone does not enable their election officials to determine eligibility in the case of

every single applicant, especially given the numerous

documented instances of voting by noncitizens.

The Ninth Circuit also erred in holding that Arizona could not require proof of citizenship for its state

registration form because of the requirement in 52

U.S.C. § 20506(a)(6)(A)(ii) that forms provided by

state public assistance agencies must be “equivalent”

to the federal form. “Equivalent” does not necessarily

mean “identical”; it can also mean “corresponding” or

“having the same effect.” App.114a-15a (Bumatay, J.,

10

dissenting). This latter interpretation makes much

more sense here given the overall structure of the

NVRA, which allows separate federal and state forms.

Again, “state-developed forms may require information the Federal Form does not,” Inter Tribal Council, 570 U.S. at 12—thus, the two forms need not be

identical. “Equivalent” is best read as referring to a

state form that meets all of the listed criteria for a federal form stated in 52 U.S.C. § 20508(b), as required

by 52 U.S.C. § 20505(a)(2).

Even if there were any ambiguity in the NVRA’s

use of terms “necessary” or “equivalent,” these provisions should be interpreted to allow States to obtain

the information that they determine is necessary to

enforce their voter qualifications. Where a statute’s

language is subject to two reasonable interpretations,

one that creates serious constitutional concerns and

one that does not, the Court should choose the one

that does not. See, e.g., Gregory v. Ashcroft, 501 U.S.

452, 464 (1991). And as this Court recognized in Inter

Tribal Council, there would be “serious constitutional

doubts if [the NVRA] precluded a State from obtaining

the information necessary to enforce its voter qualifications.” 570 U.S. at 17 (recognizing “the power to establish voting requirements” would be “of little value

without the power to enforce” them); see also id. at 28

(Thomas, J., dissenting) (same). A statute that prohibited States from requiring proof of an applicant’s qualifications—as opposed to the applicant’s mere say so—

would infringe on the States’ constitutional authority.

This Court should be particularly hesitant to read

the NVRA as preempting state efforts to enforce voter

qualifications given the States’ historical primacy in

11

the areas of voter registration and electoral regulation. As this Court explained in United States v.

Gradwell, 243 U.S. 476 (1917), “the policy of Congress

for so great a part of our constitutional life has been

. . . to leave the conduct of the election of its members

to state laws, administered by state officers.” Id. at

484-85. Thus, the assumption is that Congress will

only “regulate such elections . . . by positive and clear

statutes.” Id. at 485. Gradwell recognized a presumption against preemption in election law, or at the very

least a principle akin to the federalism clear-statement rule. Inter Tribal Council too casually classified

Gradwell as a case not involving preemption or not involving congressional regulation of elections. 570 U.S.

at 13 n.5. But there is no basis for treating an ambiguous law passed under the Elections Clause any differently than an ambiguous law passed under another

constitutional grant of authority. This Court should

recognize that the presumption against preemption

applies in both instances.

The Ninth Circuit’s misinterpretation of the NVRA

undermines the States’ constitutional role in creating

and enforcing voter qualifications and cannot withstand scrutiny.

II.

A consent decree cannot block a State’s

sovereign authority to legislate.

In addition to misinterpreting the NVRA, the

Ninth Circuit went a step further and held that a federal consent decree may wholly undermine the sovereign authority of States to make law. App.47a-49a.

The Ninth Circuit held that Arizona’s new statutory requirement that applicants provide documentary proof of citizenship when they register to vote via

12

the state form was invalid because it violated a consent decree entered in League of United Latin American Citizens of Arizona v. Reagan, No. 2:17-cv-4102

(D. Ariz. 2018) (LULAC Consent Decree). The court’s

reasoning upends the traditional separation of powers. Allowing a consent decree—not adjudicated on

the merits and agreed to by a limited number of litigants—to limit the power of a state legislature to pass

laws amounts to an impermissible veto from the bench

and exceeds the jurisdictional powers of federal

courts. See App. 104a (Bumatay, J., dissenting); see

also Shelby County v. Holder, 570 U.S. 529, 542 (2013)

(“The Federal Government does not . . . have a general

right to review and veto state enactments before they

go into effect.”). Indeed, one of the principal bases for

modifying a consent decree is a change in relevant

state law. See Fed. R. Civ. P. 60(b)(5); Foster v. Stanek,

Memorandum and Order, 18-cv-02552 (D. Kan., Aug.

31, 2023) (recognizing that a Rule 60(b)(5) motion asserting that a consent decree is “no longer equitable”

should be granted when “a significant change in factual circumstances or in law warrants revision of the

decree.” (citing Jackson v. Los Lunas Cmty. Program,

880 F.3d 1176, 1201 (10th Cir. 2018)); App.104a

(Bumatay, J., dissenting) (citing cases). The law controls a consent decree; a consent decree cannot control

what laws a legislature may pass.

This Court has recognized that “the dynamics of

institutional reform litigation”—like the case resulting in the LULAC Consent Decree—“differ from those

of other cases” and “often raise sensitive federalism

concerns.” Horne v. Flores, 557 U.S. 433, 448 (2009).

“‘Such litigation commonly involves areas of core state

responsibility,’” like regulating “voting.” Chisom v.

Louisiana ex rel. Landry, 116 F.4th 309 (5th Cir. 2024)

13

(en banc) (quoting Horne, 557 U.S. at 448). Consent

decrees pose thorny issues because “public officials

sometimes consent to, or refrain from vigorously opposing, decrees that go well beyond what is required

by federal law.” Horne, 557 U.S. at 448. This conduct

attempts to saddle future officials with “the policy

preferences of their predecessors,” and such decrees

may “‘improperly depriv[e] future officials of their designated legislative and executive powers.’” Id. at 449

(quoting Frew v. Hawkins, 540 U.S. 431, 441 (2004));

see also App.169a (Nelson, J., dissenting from denial

of rehearing en banc) (“Consent decrees subvert republican government.”).

When an activist group is the plaintiff in a suit resulting in a consent decree, there is a strong risk of

collusion between the group and a sympathetic executive official who may want to bind the hands of future

policymakers. See Nw. Env’t Advocates v. EPA, 340

F.3d 853, 855 (9th Cir. 2003) (Kleinfeld, J., dissenting); see also App.104a (Bumatay, J., dissenting) (“The

opportunity for abuse is clear.”); cf. Kasper v. Bd. of

Election Comm’rs of the City of Chicago, 814 F.2d 332,

340 (7th Cir. 1987) (recognizing that “district judges

should be on the lookout for attempts to use consent

decrees to make end runs around the legislature”). Accordingly, when a consent decree is at issue, “[a] federal court must preserve the appropriate relation between state and national power.” See Kasper, 814 F.2d

at 340.

In Arizona, like other States, “[t]he legislative authority of the state shall be vested in the legislature.”

Ariz. Const. art. IV, pt. 1, § 1; see also State v. Prentiss,

786 P.2d 932, 936 (Ariz. 1989) (“The legislature has

the exclusive power to declare what the law shall be.”).

14

The statutes at issue here were enacted in 2022—several years after the LULAC Consent Decree. Yet the

Ninth Circuit found that the consent decree barred

enforcement of H.B. 2492’s requirement that county

recorders reject state-form applications without documentary proof of citizenship. App.49a. The court

brushed aside federalism and separation of powers

concerns because it believed that the LULAC Consent

Decree only “limits the ability of executive officers in

Arizona to enforce” the requirement. App.48a-49a.

That is a distinction without a difference and

“misses the point.” App.170a (Nelson, J., dissent from

denial of rehearing en banc). Legislatures do not enact

laws to gather dust on a bookshelf; they enact them to

be effective. See App.108a (Bumatay, J., dissenting)

(“[T]he heart of the legislative power is to transform

the words of proposed legislation into enforceable statutes.”). If a consent decree can bar the enforcement of

any new statute, then the statute can easily be rendered a dead letter. The Ninth Circuit’s rationale

means “state executive-branch officials can permanently circumvent legislative authority by entering

whatever arrangements they want with private parties.” App. 104a (Bumatay, J., dissenting). It also incentivizes plaintiffs to seek broad, far-reaching consent decrees to hobble future legislatures. The Ninth

Circuit’s reasoning conflicts with this Court’s observation “that a federal consent decree must spring from,

and serve to resolve, a dispute within the court’s subject-matter jurisdiction.” Frew ex rel. Frew v. Hawkins, 540 U.S. 431, 437 (2004).

The parties to the LULAC Consent Decree “could

not agree to terms which would exceed their authority

and supplant state law.” Keith v. Volpe, 118 F.3d 1386,

15

1393 (9th Cir. 1997). The Arizona Legislature was not

a party to the consent decree, so the decree could not

remove the Arizona Legislature’s authority to make

enforceable law. See Loc. No. 93, Int’l Ass’n of Firefighters, AFL-CIO C.L.C. v. City of Cleveland, 478

U.S. 501, 529 (1986) (“[O]f course, a court may not enter a consent decree that imposes obligations on a

party that did not consent to the decree.”); see also,

e.g., League of Women Voters of Mich. v. Benson, No.

2:17-CV-14148, 2019 WL 8106156, at *3 (E.D. Mich.

Feb. 1, 2019) (three-judge district court) (finding the

secretary of state could not enter into a consent decree

invalidating legislative districts approved by the

Michigan Legislature because the state constitution

vested that authority in the Legislature and the Legislature had not provided its “express consent” to the

proposed consent decree).

The Ninth Circuit’s analysis is particularly disturbing because the Arizona Constitution provides

that “the people reserve the power to propose laws and

amendments to the constitution and to enact or reject

such laws and amendments at the polls, independently of the legislature.” Ariz. Const. art. IV, pt.

1, § 1. Arizona citizens may directly propose and implement legislation, yet the Ninth Circuit’s reasoning

would apply equally to citizen-initiated legislation.

Thus, under the Ninth Circuit’s erroneous holding, an

activist group and a state executive official could even

bind the constitutional authority of Arizona citizens to

enact legislation by popular initiative.

The Ninth Circuit improperly used the LULAC

Consent Decree “to handcuff” the Arizona Legislature

and the citizens of Arizona “in perpetuity.” App.105a

16

(Bumatay, J., dissenting). Yet it “is not a job of a federal judge” to “expand” consent decrees to bar the enactment or enforcement of new laws. United States v.

Junction City Sch. Dist., 14 F.4th 658, 668 (8th Cir.

2021). This Court should correct the Ninth Circuit’s

egregious assault on state sovereignty.

III.

Congress did not and cannot force

States to keep noncitizens on their

voter rolls.

When States find noncitizens registered to vote,

they can remove them from the rolls. And they

should—not only because every unlawful vote effectively cancels out a lawful vote, but because foreign

citizens cannot participate in our “[s]elf-government”

“by definition.” Cabell, 454 U.S. at 438; see Bluman,

800 F. Supp. 2d at 287-88; cf. Trump v. Barbara, 146

S. Ct. 2438, 2458 (2026) (“[Citizenship is] the right to

. . . participate in our political community.”); Reynolds

v. Sims, 377 U.S. 533, 554 (1964) (“[The Constitution]

protects the right of all qualified citizens to vote.”).

The NVRA, which recognizes that voting is a “right

of citizens,” 52 U.S.C. § 20501, and requires that

States regularly clean their voter rolls, does not stand

in the way. It primarily added protections for voters

who change their residence. For those voters, it makes

sense that States should complete systematic removals ahead of time because movers “can continue to be

eligible to vote.” Id. § 20507(d)(2)(B). But when the

State finds on its list someone who could under no circumstances be eligible to vote, such as a noncitizen,

the NVRA does not bar removal. If it did—if the statute forced States to keep identified noncitizens on

their voter rolls for any amount of time—then it would

17

go beyond Congress’s limited power “to regulate how

federal elections are held” and intrude upon the

State’s power to decide “who may vote in them.” Inter

Tribal Council, 570 U.S. at 15-17.

A. The 90-day provision does not bar the removal of noncitizens.

The 90-day provision must be read in context. The

NVRA requires that States “conduct a general program” to remove voters who have died or moved. 52

U.S.C. § 20507(a)(4). States can meet this requirement with a program that uses change-of-address information from the Postal Service, id. § 20507(c)(1),

and confirms a registrant’s move outside the jurisdiction with specific notice procedure, id. § 20507(d)(1)(2). In the same subsection describing this general removal program, the statute requires that States complete such programs—i.e., finish removing the names

of voters who have moved, failed to respond, and been

inactive in elections—90 days before a federal election. Id. § 20507(c)(2)(A).

Reading the 90-day provision in isolation, the

Ninth Circuit concluded that it applies to every possible removal program “without . . . limitation.”

App.42a. Programs to remove noncitizens are barred

for 90 days, the court reasoned, because the statute

specifically permits certain removals during that time.

Id. Where Congress “enumerates [ ] exceptions” from

a general rule, others “are not to be implied,” the argument goes. Id.; see DNC.Opp.12.

But the argument against implied exceptions

misses the target. Neither the RNC nor the dissenters

proposed adding exceptions to the 90-day provision.

The argument is that the 90-day bar does not cover

18

programs to remove noncitizens in the first place. By

assuming that Congress meant to cover the waterfront of possible removals, the Ninth Circuit sidestepped the question in dispute.

The clearest indication that Congress did not intend to cover the waterfront is subsection (a)(3), the

provision that bars removals at any time. Congress

wrote that “a registrant may not be removed from the

official list of eligible voters except” for four specific

reasons: request, conviction or incapacity, death, or

change in residence. 52 U.S.C. § 20507(a)(3). But no

one thinks those are the only four reasons a State can

remove a name on the voter roll. States can and do

remove people who are too young, who fraudulently

registered, or who were registered by mistake. And—

the parties agree—they can remove noncitizens too. 4

If Congress did not prohibit unstated grounds for

removal in subsection (a)(3), then the same language

in subsection (c)(2) should not be read more expansively to prohibit such removals for 90 days. See id. at

1287-88 (suggesting “violence . . . to the statutory

scheme” otherwise); United States v. Florida, 870 F.

4 A contrary view of subsection (a)(3)—one barring the removal of noncitizens at any time—would be “absurd,” Arcia v.

Detzner, 908 F. Supp. 2d 1276, 1282 (S.D. Fla. 2012), rev’d, 746

F.3d 1273 (11th Cir. 2014), superseded, 772 F.3d 1335 (11th Cir.

2014), and unconstitutional too, see supra pp. 4-5 (explaining

that the Constitution gives States the power to determine voter

qualifications); accord Arcia, 746 F.3d at 1288 (Jordan, J., concurring), withdrawn, 772 F.3d 1335 (“Such a result [would be]

instinctively difficult to accept” given “states’ authority to determine the qualifications of eligible voters in federal elections. See

U.S. Const. art. I, §§ 2, 4[.]”).

19

Supp. 2d 1346, 1350 (N.D. Fla. 2012) (“Surely ‘removed’ in 8(a)(3) and ‘remove’ in 8(c)(2) mean the

same thing.”); accord Arcia, 908 F. Supp. 2d at 1283.

Put another way, Plaintiffs apply their logic selectively: exceptions to the 90-day bar prove an otherwise

universal rule, they say, but exceptions to the anytime bar do not. The Court should be loath to “attribute [such] a schizophrenic intent to the drafters.” Cf.

Delta Air Lines v. August, 450 U.S. 346, 353 (1981).

What the Court needs is a harmonious reading of

subsections (a)(3) and (c)(2), and there are a couple of

paths it could take. 5

1. The Court could recognize that when this section of the NVRA discusses removals, it means those

enumerated grounds listed in subsection (a). This

straightforward reading requires no extra scaffolding—no need to opine on why Congress chose to regulate only removals by request, conviction or incapacity, death, or change in residence. It is enough to see

that “these two provisions are meant to be read in conjunction with one another.” Arcia, 908 F. Supp. at

1283. Thus, when the 90-day bar refers to a “program

. . . to systematically remove the names of ineligible

voters from the official lists of eligible voters,” 52

U.S.C. § 20507(c)(2), it means those whom Congress

already contemplated could be “removed from the official list of eligible voters,” id. § 20507(a)(3).

5 Amici will not dwell on the worst option of all—reading sub-

section (a)(3) to prohibit removing noncitizens at any time. Plaintiffs have expressly conceded that noncitizens can be removed so

long as their removal is “individualized” or “complete” 90 days

before a federal election. E.g., DNC.Opp.10-11. Even if Plaintiffs

had not conceded the point, this reading of subsection (a)(3)

would be patently unconstitutional. Supra n.4.

20

Plaintiffs insist that the 90-day bar must be

broader because Congress excluded from its scope

“three of [the] four categories” from subsection (a), so

“only movers” would be protected during the 90 days.

DNC.Opp.15. But their only reason for resisting this

conclusion is that “Congress knew how” to say “change

in residence.” Id. This is a weak inference, which at

least two courts have had no trouble rejecting. See

Florida, 870 F. Supp. 2d at 1350 (“During the 90-day

[ ] period, a state may pursue a program to systematically remove registrants . . . not based on a change of

residence.”); Arcia, 908 F. Supp. 2d at 1282 (“The

Court finds no reason to conclude that the 90-day Provision applies to anything other than removals of registrants based on a change in residence.”). And the

same kind of argument can be run in reverse: Congress also knew how to write “[a]ny State program or

activity to protect the integrity of the electoral process” when it wished to address removals beyond the

scope of subsection (a)(3). Id. at 1284 (quoting 52

U.S.C. § 20507(b); concluding that “subsection (b) was

meant to apply to programs aimed at removing those

voters whose status as registered voters was void ab

initio”). 6

Reading the 90-day bar as restricting only programs related to residence coheres with the rest of the

statute. For starters, Congress was clearly preoccupied with protecting voters from erroneous removal

6 Reading only subsection (b), “Confirmation of voter regis-

tration,” to govern void ab initio registrations is attractive for

another reason too. That subsection uses the more capacious

phrase “the removal of the name of any person,” 52 U.S.C.

§ 20507(b)(2), whereas subsection (c)(2) pauses removals of “ineligible voters” for 90 days and exempts “the removal of names,”

id. § 20507(c)(2)(A), (B)(i).

21

based on changes in residence. Welker v. Clarke, 239

F.3d 596 (3d Cir. 2001) (“[T]he NVRA strictly limited

removal of voters based on change of address[.]”). The

NVRA’s “general” program is the only program regulated in detail, and the only one described in the subsection “Voter removal programs,” which contains the

90-day bar. 52 U.S.C. § 20507(c)(1), inc’g by ref. id.

§ 20507(a)(4). As the text reflects, Congress was concerned about voters who move but “remain[ ]” in the

same jurisdiction. Id. § 20507(d)(2). To protect these

voters, Congress ensured that they would have notice

and a grace period before their removal, id., and guaranteed them a polling place even if they fail to contact

their registrars, id. § 20507(e). Likewise, voters who

leave their “registrar’s jurisdiction,” rather than being

immediately removed, should be “inform[ed]” about

how to “continue to be eligible to vote.” Id.

§ 20507(d)(2)(B).

In contrast to movers, voters who die or are disqualified due to criminal conviction or mental incompetence are disqualified anywhere within the jurisdiction. Even if they find a new polling place, update

their records, or receive new voter-registration information, they cannot “continue to be eligible.” Id. Accordingly, the NVRA permits their removal at any

time. Id. § 20507(c)(2)(B)(i). It makes sense that Congress protected movers to a greater degree than

names removed for other reasons.

In any event, there is no reason to “secondguess[ ]” Congress’s statutory focus on residency, cf.

Husted v. A. Philip Randolph Inst., 584 U.S. 756, 774

(2018), and presume that the 90-day provision should

be more “expansive,” App.43a. Indeed, it would be

much more anomalous if Congress had written the 90-

22

day bar to restrict removals of noncitizens, minors,

and others that it did not anticipate anywhere else in

the statute. Those who say that the 90-day span must

be a “quiet period,” Va. Coal. for Immigrant Rights v.

Beals, 803 F. Supp. 3d 454, 471-74 (E.D. Va. 2025),

moreover, cannot square their view with the textual

exceptions: If the “risk” is so “great[ ]” during the 90

days, Arcia, 772 F.3d at 1346, then why would Congress permit systematic programs to remove names

based on criminal conviction or death to run continuously and conspicuously all the way through election

day? It would be especially strange for Congress to offer greater protection to noncitizens than to American

felons, where Congress recognized in the same statute

that citizenship is effectively an eligibility requirement for federal elections, see 52 U.S.C. §§

20504(c)(2)(C)(i); 20506(a)(6)(A)(i)(I); 20508(b)(2)(A),

and it is illegal for noncitizens to vote in them, 18

U.S.C. § 611, or fraudulently claim citizenship to vote,

18 U.S.C. § 1015(f).

The most coherent reading of the 90-day bar is that

it regulates the same kind of removal programs that

the statute requires—general programs for dealing

with change in residence. Plaintiffs ascribe to Congress an irrational aim to restrict sub silentio every

conceivable removal program with a few exceptions—

conviction, death, etc.—which are not obviously more

important than any other ground for removing someone who is not eligible to vote.

2. The RNC, the dissenters below, and multiple

courts have advanced an interpretation that explains

both why Congress did not list every possible ground

for removal in subsection (a)(3) and why it was unnecessary to list other exceptions to the 90-day bar. On

23

this reading, “what Congress had in mind . . . was removing a person on grounds that typically arise after

an initial proper registration. Congress was not addressing the revocation of an improperly granted registration of a noncitizen.” Florida, 870 F. Supp. 2d at

1350. Subsections (a)(3) and (c)(2) address “the removal of once-eligible voters—those who were at one

time bona fide registrants, yet . . . became thereafter

ineligible.” Arcia, 908 F. Supp. 2d at 1283. Neither

provision addresses those “whose registration was

void ab initio,” such as disqualified felons, the mentally incompetent, “minor[s], non-citizens, fictitious

persons, or any other . . . null[ ] . . . registration.” Id.

“Congress did not intend to bar [their] removal[.]” Bell

v. Marinko, 367 F.3d 588, 591-92 (6th Cir. 2004).

Plaintiffs invite the Court to share their confusion

over this argument, but the idea is simple: Because a

noncitizen is not an “eligible applicant,” § 20507(a)(1),

he never becomes “a registrant” who is protected from

removal in general, § 20507(3), or during the 90-day

period specifically, § 20507(c)(2), inc’g by ref.,

§ 20507(a)(3)-(4) (referring to “the registrant”).

Plaintiffs deride this reading, but they offer no

plausible alternative. If some “registrants” could be

“registered mistakenly,” DNC.Opp.15, then surely

they must be removable. Yet subsection (a)(3) seems

to bar the removal of “a registrant” except for the enumerated reasons. Therefore, either Congress did not

mean “remove” in subsections (a)(3) and (c)(2) to cover

noncitizens, see Florida, 870 F. Supp. 2d at 1350, or it

did not mean “registrant” in (a)(3) and “ineligible voters” in (c)(2) to cover noncitizens, see App.122a-25a;

Bell, 367 F.3d at 592. Either way, because (a)(3) and

24

(c)(2) must be read in pari materia, the 90-day provision cannot cover the removal of noncitizens.

B. If the 90-day provision bars the removal

of noncitizens, then it is unconstitutional.

As the Court “has recognized” many times, “States

retain the power to regulate their own elections,” Burdick v. Takushi, 504 U.S. 428, 433 (1992), and this

power is at its apex when States establish “qualifications for . . . the franchise,” Carrington, 380 U.S. at 91.

The constitutional text, structure, and history all forbid Congress from exercising “control” over “who may

vote.” Inter Tribal Council, 570 U.S. at 16. Because

Congress cannot control voter qualifications directly

or indirectly, any burdens on a State’s “power to enforce” those qualifications also “raise serious constitutional doubts.” Id. at 17-18.

The Ninth Circuit crossed the line from raising

constitutional doubts to embracing unconstitutionality when it held that Arizona could not use “state and

federal databases” and “mailing of notices” to identify

and remove noncitizens before a federal election.

App.45a. This is no modest intrusion. States hold primary elections, general elections, and sometimes runoff elections for federal office every two years, and

they often use the same voter roll for state elections at

the same time. In Alabama this year, the “90 days”

began in mid-February and, due to runoffs and special

elections, will not end until November 3. That adds up

to more than 70% of the days in 2026 that the State

could not enforce its voter qualifications if the Ninth

Circuit were correct. Even if it hadn’t held a special

25

election, Alabama—and most States—would be subject to the Ninth Circuit’s bar for about 180 days every

two years.

Prohibiting States from enforcing important voter

qualifications for half of every election year does not

fairly “balance” their sovereignty with Congress’s limited power over how elections are run. Contra App.46a

(quoting Arcia v. Fla. Sec’y of State, 772 F.3d 1335,

1346 (11th Cir. 2014)). States may become aware of

noncitizens on the voter rolls at any time. They may

face challenges in getting the information they need

to conduct proper reviews. When Alabama Secretary

of State Wes Allen tried to coordinate with the federal

government on noncitizen voting, he was stonewalled

for over a year. See United States v. Alabama, No.

2:24-cv-01329 (N.D. Ala. Oct. 1, 2024), DE11-1 ¶¶ 1737. The Secretary finally went to other state agencies

for citizenship data, and the United States sued to

stop him from using it on the ground that it was too

late. As a result, Alabama could not even ask voters

who had told the State they were noncitizens to update

their information. United States v. Alabama, supra,

DE56. If nothing else, this episode demonstrates how

misinterpretation of the 90-day bar impedes the

enforcement of voter qualifications; the Court should

return to the States the time and flexibility they

need. 7

7 Unfortunately, we now know that some noncitizens did vote

in Alabama’s 2024 elections after the Secretary’s letter campaign

was enjoined. See, e.g., United States v. Homero Ramos, No. 7:26CR-98 (N.D. Ala. Oct. 27, 2026), DE33 (sentencing noncitizen defendant for two counts of fraudulent voting under 52 U.S.C.

§ 20511(2)(B)).

26

Some courts have upheld the bar because it applies

only “when the risk of disenfranchising eligible voters

is the greatest,” Arcia, 772 F.3d at 146, ignoring that

the risk of unlawful voting is the greatest at the same

time. As an election gets closer, a State has less time

to investigate, uncover, and address fraud or

mistakes. In the Ninth Circuit’s view, the 90-day

provision thus ties a State’s hands at the most critical

time in the cycle. And if States do find noncitizens on

their voter rolls during the 90 days, they’re told to sit

on their hands, let the noncitizens vote, and wait

until after the election to act. “[D]ebasement and

dilution of the votes of American citizens will

naturally follow.” Arcia v. Detzner, No. 12-22282CIV, 2015 WL 11198230, at *2 (S.D. Fla. Feb. 12,

2015); contra Democratic Nat’l Comm., 594 U.S. at

686 (“[I]t should go without saying that a State may

take action to prevent election fraud without waiting

for it to occur[.]”).

The ability to conduct “individualized” removals

“at any time” is not a real solution. Contra

DNC.Opp.3. Calling the suggestion “specious,” one

court rightly “question[ed] how any such individualized process could ever be implemented and undertaken by a state in an effective and orderly fashion 90

days before a Federal election.” Arcia, 2015 WL

11198230, at *2. Tellingly, Plaintiffs and the Ninth

Circuit never explain how a non-systematic removal

program would work. And if Arizona’s notice and cure

provisions do not count as “individualized information

or investigation,” App.43a, then it is difficult to see

what would—short of a State accidentally stumbling

upon a single registered noncitizen.

27

Aside

from

the

practical

problems

of

“investigat[ing]” thousands of names “individual[ly],”

id., it is unclear what would survive the Ninth

Circuit’s other holding that searching a subset of “all

voters” likely to be noncitizens is “discriminatory,”

App.40a-41a. In the Ninth Circuit, the States can

conduct a noncitizen removal program that is

“uniform” but “non-systematic,” “individualized” but

not “subjective,” “rigorous” but not “database”-driven.

Arizona has been told to walk a tightrope over the

Grand Canyon—possible, perhaps, but rather risky.

This cannot be a sovereign State’s only choice for

much of the election year, every election year. The

“power to enforce” eligibility criteria must mean more.

Inter Tribal Council, 570 U.S. at 17.

***

When States identify noncitizens on their voter

rolls, they must have the power to remove them—just

as they must have the power to remove

disenfranchised felons, minors, or any other person not

qualified to vote. For too long, federal courts have

turned States into bystanders—betraying the

Constitution’s promise that States retain the power to

decide who enters the voting booth. At a minimum, the

Court should follow its “settled policy” and read the

NVRA in a way that avoids putting its constitutionality

in doubt. Gomez v. United States, 490 U.S. 858, 864

(1989). The text contains no “unambiguous” language

that would “force[ ]” the Court’s hand, so it should

assume that Congress did not “mean[ ] to exercise or

usurp any unconstitutional authority.” United States v.

Coombs, 37 U.S. 72, 74 (1838).

If, however, the Court believes that the best reading of the NVRA is to prohibit States from removing

28

noncitizens—whether always or in the 90 days before

any federal election—then it is unconstitutional.

CONCLUSION

This Court should reverse.

Respectfully submitted,

STEVE MARSHALL

Attorney General

of Alabama

KRIS W. KOBACH

Attorney General

of Kansas

A. BARRETT BOWDRE

Solicitor General

DWIGHT CARSWELL

Acting Solicitor General

Counsel of Record

ROBERT M. OVERING

Principal Deputy

Solicitor General

MISTY S. FAIRBANKS

MESSICK

Assistant Attorney

General

Office of the Alabama

Attorney General

501 Washington Ave.

Montgomery, AL 36104

(334) 242-7300

barrett.bowdre@

AlabamaAG.gov

RYAN J. OTT

Assistant Solicitor General

Office of the Kansas

Attorney General

120 S.W. 10th Ave

Topeka, KS 66612

(785) 296-2215

dwight.carswell@ag.ks.gov

29

ADDITIONAL LEGAL

REPRESENTATIVES OF THE STATES

CORI MILLS

Acting Attorney

General of Alaska

LIZ MURRILL

Attorney General of

Louisiana

TIM GRIFFIN

Attorney General of

Arkansas

LYNN FITCH

Attorney General of

Mississippi

JAMES UTHMEIER

Attorney General of

Florida

CATHERINE HANAWAY

Attorney General of

Missouri

CHRIS CARR

Attorney General of

Georgia

AUSTIN KNUDSEN

Attorney General of

Montana

RAÚL LABRADOR

Attorney General of

Idaho

MICHAEL T. HILGERS

Attorney General of

Nebraska

THEODORE E. ROKITA

Attorney General of

Indiana

JOHN FORMELLA

Attorney General of

New Hampshire

BRENNA BIRD

Attorney General of

Iowa

ANDY WILSON

Attorney General of

Ohio

RUSSELL COLEMAN

Attorney General of

Kentucky

GENTNER DRUMMOND

Attorney General of

Oklahoma

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DAVE SUNDAY

Attorney General of

Pennsylvania

KEN PAXTON

Attorney General of

Texas

ALAN WILSON

Attorney General of

South Carolina

DEREK BROWN

Attorney General of

Utah

MARTY JACKLEY

Attorney General of

South Dakota

JOHN B. MCCUSKEY

Attorney General of

West Virginia

JONATHAN SKRMETTI

Attorney General of

Tennessee

KEITH G. KAUTZ

Attorney General of

Wyoming