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 AMICUS CURIAE

ADVANCE COLORADO,

IN SUPPORT OF PETITIONER

___________________________________

Kristine L. Brown

6501 E. Belleview Ave,

Ste. 375

Denver, CO 80111

720-285-9552

kbb@advancecolorado.org

Counsel for Amicus Curiae

LEGAL PRINTERS LLC ! Washington, DC ! 202-747-2400 ! legalprinters.com

TABLE OF CONTENTS

Table of Authorities .................................................. iii

Interest of Amicus Curiae ...........................................1

Summary of Argument ...............................................2

Argument.....................................................................5

I.

AMERICAN REGISTRATION LAW

HISTORICALLY DISTINGUISHED THE

QUALIFICATIONS FOR BECOMING A

VOTER FROM THE MAINTENANCE OF A

VOTER’S REGISTRATION ................................5

A. Nineteenth-century federal election law

treated the right to register as a separate,

though related, issue from placement on the

roll. ....................................................................6

B. Citizenship is a qualification question for

voting rights, and the lack of citizenship is

disqualifying at all times .................................8

II.

CONGRESS EXPRESSLY PRESERVED THE

TRADITIONAL ROLE OF ELECTION

OFFICIALS IN DETERMINING APPLICANT

ELIGIBILITY, INCLUDING CITIZENSHIP. ...10

III. THE HISTORY OF THE 90-DAY RULE

SHOWS THAT CONGRESS WAS

ADDRESSING SYSTEMATIC PURGE AND

ADDRESS-VERIFICATION PROGRAMS

DIRECTED AT EXISTING ELIGIBLE

REGISTRANTS. ................................................12

i

IV. THE HISTORICAL DISTINCTION SUPPORTS

BELL, NOT A RULE THAT TEMPORARILY

PROTECTS REGISTRATIONS INVALID

FROM INCEPTION. .........................................15

Conclusion .................................................................18

ii

TABLE OF AUTHORITIES

Cases

Arcia v. Florida Secretary of State,

772 F.3d 1335 (11th Cir. 2014) .............................4, 16

Bell v. Marinko,

367 F.3d 588 (6th Cir. 2004) ........................... 4, 15-16

Husted v. A. Philip Randolph Institute,

584 U.S. 756 (2018) ...................................................14

Mi Familia Vota v. Fontes,

129 F.4th 691 (9th Cir. 2025) ...............................4, 16

Murphy v. Ramsey,

114 U.S. 15 (1885) ...................................................3, 7

Pope v. Williams,

193 U.S. 621 (1904) ......................................... 2-3, 7, 8

Constitutional and Statutory Provisions

18 U.S.C. § 611(a)......................................................16

52 U.S.C. § 20501(b)(1), (2), (4)....................... 3, 10, 18

52 U.S.C. § 20504(c)(2)(C) ...........................................9

52 U.S.C. § 20507(a) ..................................................18

52 U.S.C. § 20507(a)(1)–(4) .........................................3

iii

52 U.S.C. § 20507(a)(2) .............................................10

52 U.S.C. § 20507(a)(3) .............................................10

52 U.S.C. § 20507(a)(4) .............................................10

52 U.S.C. § 20507(a)(5) ...............................................9

52 U.S.C. § 20507(b) ..................................................18

52 U.S.C. § 20507(b)(1) .............................................17

52 U.S.C. § 20507(c)(1) ..............................................14

52 U.S.C. § 20507(c)(2) ......................................2, 5, 14

52 U.S.C. § 20507(d)..................................................14

52 U.S.C. § 20508(b)(2)(A)–(C) ...................................9

Enforcement Act of Feb. 28, 1871, ch. 99, § 20,

16 Stat. 433 (1871) ..................................................2, 6

The National Voter Registration

Act of 1993 ................................ 1-5, 7, 9-12, 14, 17, 18

Other Authorities

138 Cong. Rec. S10,736 (daily ed. May 7, 1992) .....4, 13

Fed. Election Comm’n, Implementing the National

Voter Registration Act of 1993: Requirements, Issues,

Approaches, and Examples (1994) ............................11

iv

H.R. Rep. No. 103-9 (1993), reprinted in 1993

U.S.C.C.A.N. 105 ................................... 3, 4, 11, 13, 15

S. Rep. No. 103-6 (1993) .................................. 3, 13, 14

v

INTEREST OF AMICUS CURIAE 1

Amicus curiae Advance Colorado (“Advance”) is a

nonprofit organization that promotes fiscal

responsibility, transparency, limited and accountable

government, free enterprise, strong public safety, and

accountable education. Advance’s work is grounded in

the principle that government should exercise only

the authority the law actually gives it, while

preserving the rights and responsibilities of citizens

and the States.

That principle is directly implicated here. The

National Voter Registration Act of 1993 (“NVRA”)

established important federal rules for voter

registration and maintenance of registration lists.

But Congress legislated against an older and settled

distinction: election officials first determine whether

an applicant possesses the legal qualifications for

registration; list-maintenance rules then govern the

continued status of persons who entered the rolls as

qualified voters. Citizenship, where required by law,

belongs to the first inquiry.

Advance submits this brief to place the NVRA’s 90day provision in that historical setting. The

legislative record shows that Congress was concerned

with systematic pre-election purge and addressverification programs that could mistakenly remove

eligible registrants. It does not show that Congress

intended the 90-day rule to transform a registration

1 Pursuant to Rule 37.6, no counsel for a party authored this

brief in whole or in part, and no person or entity other than

Amicus or its counsel made a monetary contribution intended to

fund the preparation or submission of this brief.

1

that was invalid from inception into a federally

protected status for the final 90 days before an

election. The historical distinction between

qualification and maintenance supports Petitioner’s

reading of 52 U.S.C. § 20507(c)(2).

SUMMARY OF ARGUMENT

The question in this case is statutory, but the

statute did not arise in a vacuum. Long before

Congress enacted the NVRA, American election law

treated registration as the administrative means by

which election officials identified and recorded

persons legally entitled to vote. The qualifications

came first. Registration followed. And when the law

made citizenship a qualification, an applicant who

lacked citizenship lacked the legal entitlement to be

registered; even if they were registered, they had no

right to continued registration or to cast a vote.

The distinction between core voting rights

qualifications and the administration of voter

registration appears in federal election legislation

more than a century before the NVRA. While the

Enforcement Act of 1871 had the protection of Black

Americans’ right to vote as its core purpose, it also

addressed persons who attempted to register without

a “lawful right” and election officers who registered a

person “not entitled to be registered.” Act of Feb. 28,

1871, ch. 99, § 20, 16 Stat. 433 (1871). The Act thus

distinguished a person’s legal entitlement to

registration from the administration of a registration

list. Decisions of this Court likewise described

registration as a process for determining and

recording qualified voters. See, e.g., Pope v. Williams,

2

193 U.S. 621, 623–24 (1904); Murphy v. Ramsey, 114

U.S. 15 (1885). The presumption is that those on the

list were, at the time of registration, valid voters. As

Arizona’s argument demonstrates, this is not always

the case, and States must be free to respect actual

citizens by removing those who are “not entitled to be

registered” when an invalid registration is discovered.

Congress preserved the distinction between a

valid right to vote and the administration of voter

registration when it enacted the NVRA. Section 8

begins with the “eligible applicant,” requires election

officials to notify each applicant of the disposition of

the application, then regulates removal of a

“registrant” from the “official list of eligible voters.” 52

U.S.C. § 20507(a)(1)–(4). Congress’s stated purposes

likewise center on “eligible citizens” and accurate

registration rolls. Id. § 20501(b)(1), (2), (4). Most

importantly, the House Report expressly rejected the

idea that the NVRA made registration automatic.

Election officials were to continue making

determinations of an applicant’s eligibility, “such as

citizenship,” under existing law and practice. H.R.

Rep. No. 103-9, at 8 (1993), reprinted in 1993

U.S.C.C.A.N. 105, 112.

The history of the 90-day provision points in the

same direction. The Senate Report discussed the

dangers of large-scale list-cleaning systems and then

described the 90-day deadline through the concrete

problem of address verification. It laid out that a

State program undertaken “to verify addresses” had

to be completed before the 90-day window. S. Rep. No.

103-6, at 18–19 (1993). The House Report similarly

explained that the requirement applied to State

3

outreach such as mailings and door-to-door

canvasses. H.R. Rep. No. 103-9, at 16. And the Senate

floor record from the prior Congress tied the move to

a 90-day period to the time necessary for States to

complete mail programs. 138 Cong. Rec. S10,736

(daily ed. May 7, 1992).

Those materials describe maintenance of

registrations that were presumptively valid when

made: address verification, residence changes, mass

mailings, canvasses, and the danger that a legitimate

voter will be erroneously swept from the rolls shortly

before Election Day. They do not describe the

correction of an entry belonging to a person who never

satisfied an antecedent qualification to register.

The Sixth Circuit captured the distinction in Bell

v. Marinko, holding that the NVRA’s removal

restrictions did not protect persons who were

“ineligible and improperly registered to vote in the

first place.” 367 F.3d 588, 591–92 (6th Cir. 2004). The

Eleventh Circuit later reached the opposite result for

systematic noncitizen removals in Arcia v. Florida

Secretary of State, 772 F.3d 1335, 1344–46 (11th Cir.

2014), and the Ninth Circuit followed that approach

below. Mi Familia Vota v. Fontes, 129 F.4th 691, 715–

17 (9th Cir. 2025). The historical record favors Bell’s

understanding, and the Court should reverse.

4

ARGUMENT

I.

AMERICAN REGISTRATION LAW

HISTORICALLY DISTINGUISHED THE

QUALIFICATIONS FOR BECOMING A

VOTER FROM THE MAINTENANCE OF

A VOTER’S REGISTRATION.

Despite this current dispute, Congress did not

write on a blank slate when it passed the NVRA in

1993. Voter registration had long served a familiar

legal function: it was a procedure for determining,

recording, and evidencing who possessed the

qualifications fixed by law. Those qualifications and

the administrative machinery of registration were

related, but they were not the same thing. Even if a

person were mistakenly added to the voter rolls

administratively, this did not confer an actual right to

vote to a person who could not possess it by virtue of

failing to meet a required qualification.

That distinction matters because the 90-day

provision at issue here regulates a “program” for

systematically removing voters who have since

become ineligible (most usually through death or

address change) from an official list of “eligible

voters.” 52 U.S.C. § 20507(c)(2)(A). If registration law

historically understood the roll as a record of persons

determined – or believed, based on representations –

to possess the qualifications of electors, then a person

who, in fact, lacked a required qualification when

registered presents a different problem from a

qualified registrant who later becomes removable

because of death, residence, conviction, or another

subsequent event. Amicus contends that the removal

of a person who was never actually qualified to vote

5

in the first place is not governed by the 90-day

provision, as it is designed to regulate the removal of

persons who have had a change in registration status,

but were qualified to vote at the time of registration.

This is supported by an historical examination.

A. Nineteenth-century federal election law

treated the right to register as a

separate, though related, issue from

placement on the roll.

Congress itself used that framework during

Reconstruction when it set out to enforce voting rights

for Black Americans that had been recognized in the

U.S. Constitution. The Enforcement Act of 1870 and

its 1871 amendment created federal protections and

offenses surrounding voter registration for federal

office elections. While these Acts had the core purpose

of protecting the right of Black Americans to register

and to vote, despite the will of Southern states, the

1871 amendment also addressed a person who

fraudulently attempted to register while “not having

a lawful right so to do,” and an officer who registered

a person “not entitled to be registered.” Act of Feb. 28,

1871, ch. 99, § 20, 16 Stat. 433 (1871). The statute

authorized federal supervisors to attend registration

proceedings and challenge persons offering to

register. Id. § 4, 16 Stat. at 434–35. The purpose of

this authorization was to ensure that all willing

citizens but only citizens would be included on the

voter rolls. The long title of the 1871 Act begins, “An

Act to enforce the Rights of Citizens of the United

States to vote…” 16 Stat. 433, demonstrating at the

outset that non-citizens had no right to be on the rolls

– even at a time when the rolls would be

6

administratively added to and expanded. The

administration of the rolls and the qualification and

right to be on the rolls were two different issues,

although they were related.

The Enforcement Acts were structurally

significant, as these federal laws assumed that legal

entitlement to the right to vote existed for Black

Americans independently of the clerical fact that a

name appeared (or did not appear) on a registration

list. Conversely, a wrongful entry for any person did

not manufacture an entitlement that the applicant

lacked. And, a qualified person wrongfully denied

registration possessed a legal right that the

registration officer was bound to respect.

This Court’s cases used the same conceptual

ordering. In Murphy v. Ramsey, the Court

distinguished the legal qualifications prescribed for

voters from the work of registration officers

implementing those qualifications. In this case, the

Court considered a territorial registration law

requiring registration officers to make careful inquiry

concerning persons entitled to vote, ascertain the

ground on which each person claimed to be a voter,

and place qualified persons only on the register. See

Murphy, 114 U.S. 15 (1885). In Pope v. Williams, the

Court described an applicant seeking to be entered “as

a qualified voter” on Maryland’s registry and treated

the registration requirement as part of the State’s

administration of the franchise. See 193 U.S. 621–24

(1904). Neither case resolves the NVRA explicitly, but

their value is historical, demonstrating a clear

distinction

between

possessing

the

legal

7

qualifications of an elector and being entered into the

official registration list.

While the precise qualifications for voting have

changed throughout American history, and they have

sometimes varied among jurisdiction, the relevant

historical proposition that applies here is narrow:

where the law imposed a qualification, the first

question was whether the applicant possessed it.

Qualification was logically antecedent to lawful

registration, investigation on qualification was

allowed, and anyone not qualified could be prevented

from voting even just before he cast his ballot.

B. Citizenship is a qualification question for

voting rights, and the lack of citizenship

is disqualifying at all times.

Citizenship is a qualification question that asks

whether the applicant belongs to the class of persons

the law permits to register and to vote. That is why

registration forms and procedures have historically

asked questions bearing on citizenship or

naturalization before recognizing a person as a

qualified voter. A mistake in the original registration

process does not impart rights that do not exist in

actuality.

Amicus does not contend that every American

jurisdiction has always required United States

citizenship as a qualification for voting. Pope itself

noted that, early on, some States allowed certain

foreign-born persons to vote after declaring an

intention to become citizens. 193 U.S. at 632–33. But,

whenever citizenship was a legal qualification, it has

always been a condition of entitlement to registration

8

and to vote. If that condition was never met, no

entitlement to vote ever existed, and States retain a

right to block any person without an entitlement to

vote from voting. Removing such a person is a basic

function of the State’s protection of the rights of its

own citizens.

Congress created the NVRA with this historical

understanding of the need for the citizenship

qualification to actually exist. Mail-in and other voter

registration forms must state each eligibility

requirement, including citizenship, and require an

attestation that the applicant meets those

requirements.

52

U.S.C.

§§

20504(c)(2)(C),

20508(b)(2)(A)–(C). Section 8 requires States to

inform applicants of voter-eligibility requirements

and the penalties for a false application. Id. §

20507(a)(5). These are front-end rules. They concern

whether an applicant may lawfully become a

registrant and whether he or she lawfully has a right

to vote.

A person who lawfully registers and later changes

residence presents a maintenance question: does the

existing registration remain proper in that

jurisdiction? A person who lacked a required

qualification when the application was accepted

presents an antecedent-validity question: was there

ever a lawful basis for that registration? If

qualification is lacking, disqualification is always

possible. The two situations may both require an

election official to alter a database, but they do not

carry the same legal significance or weight.

9

II. CONGRESS EXPRESSLY PRESERVED

THE TRADITIONAL ROLE OF ELECTION

OFFICIALS IN DETERMINING

APPLICANT ELIGIBILITY, INCLUDING

CITIZENSHIP.

The NVRA’s text carries the historical sequence

forward. Section 8 first directs each State to ensure

that an “eligible applicant” who timely submits a

valid form is registered. 52 U.S.C. § 20507(a)(1). The

election official then sends each “applicant” notice of

the disposition of the application. Id. § 20507(a)(2).

Only after that does the statute speak of removing the

name of a “registrant” from the “official list of eligible

voters.” Id. § 20507(a)(3). And the mandatory general

maintenance program addresses persons who become

removable by reason of the death of the registrant or

a change in the registrant’s residence. Id. §

20507(a)(4).

Congress’s findings and purposes reinforce the

sequence. The NVRA was enacted to increase the

number of “eligible citizens” who register, enhance

the participation of “eligible citizens as voters,”

protect electoral integrity, and ensure accurate and

current voter-registration rolls. 52 U.S.C. §

20501(b)(1)–(4). The statute therefore protects access

and integrity at the same time. Its registration

protections are protections for eligible applicants and

eligible citizens, not an instruction that eligibility

becomes irrelevant once an application has been

processed. Historically, there is a basis to believe that,

upon discovery that eligibility was wrongly

determined, the provisions of the NVRA no longer

apply to the ineligible voter.

10

The House Report removes any doubt that

Congress understood the importance of the eligibility

of any person to cast a vote. The Report was especially

explicit about citizenship. It stated that election

officials should continue eligibility determinations

“such as citizenship” as under then-existing law and

practice. H.R. Rep. No. 103-9, at 8, reprinted in 1993

U.S.C.C.A.N. at 112. The Federal Election

Commission’s 1994 implementation guide reproduced

the same explanation when describing the continuing

role of State election officials. Fed. Election Comm’n,

Implementing the National Voter Registration Act of

1993: Requirements, Issues, Approaches, and

Examples 24–25 (1994) (on file with the U.S. Election

Assistance Commission). That legislative explanation

is difficult to reconcile with a theory that treats the

discovery of the lack of citizenship only as an ordinary

roll maintenance issue. Congress described

citizenship as a matter of “applicant’s eligibility.”

H.R. Rep. No. 103-9, at 8. There is a significant legal

difference between a lack of legal eligibility to ever

vote, due to the lack of the central qualification of

citizenship and the maintenance of a voter database

when new information is learned about a voter who

was legally eligible at the time of registration, but has

since become ineligible because of death, address

change, etc. – all things that do not change the fact

that, at the time of registration, this person had a

right to vote.

The distinction also explains why the NVRA

repeatedly uses different nouns. An applicant applies.

An eligible applicant is entitled to registration if the

statutory timing rules are satisfied. A registrant is

someone on the roll. An eligible voter is the object of

11

the official list – which persons the official list should

include. Section 8(a)(4)’s maintenance mandate deals

with ineligibility arising from death or a change in

residence. It does not, in fact, deal with a discovery

that a particular registrant was never an eligible

applicant in the first place. Because such a discovery

relates to a core qualification necessary to claim and

exercise voting rights in the United States, every

person whose name appears in a database should not

be collapsed into the same legal category, and the

State’s hands tied, making its officials unable remove

someone who has no proper right to vote at all.

III. THE HISTORY OF THE 90-DAY RULE

SHOWS THAT CONGRESS WAS

ADDRESSING SYSTEMATIC PURGE AND

ADDRESS-VERIFICATION PROGRAMS

DIRECTED AT EXISTING ELIGIBLE

REGISTRANTS.

The 90-day provision cannot be understood apart

from the list-maintenance problem Congress was

discussing. Congress was concerned that broad purge

programs—especially those using nonvoting or

address information as proxies for a move—could

remove qualified citizens shortly before an election,

leaving too little time for rightful voters to correct

errors.

The Senate Report makes this clear. After

discussing the danger that list-cleaning mechanisms

could be abused and the benefits of ongoing

registration programs that update addresses, the

Report turned to the general maintenance program

for deaths and changes of residence. It then explained

that a State program undertaken “to verify

12

addresses” must be completed before the 90-day

period. S. Rep. No. 103-6, at 18–19. The surrounding

discussion concerns address updating, Postal Service

change-of-address information, verification mailings,

canvassing, and the danger that legitimate

registrants would be needlessly forced to re-register.

Id. at 17–19.

The House Report is parallel. Its explanation of

Section 8 says the 90-day requirement applies to

outreach activity such as a mailing or a door-to-door

canvass and distinguishes that outreach from

changes that may still be made to the official list

during the period under the Act. H.R. Rep. No. 103-9,

at 16. Again, the expressed concern was systematic

activity violating the status of eligible persons

already on the rolls who would not have enough time

to prove that their right to vote still existed. (Notably,

this did not include a concern that the person may

never have had a right to vote in the first place. That

was a separate issue not addressed by the 90-day

rule.)

The legislative development in the prior Congress

supplies additional context. During Senate

consideration of S. 250 in 1992, Senator Ford

explained a modification concerning the class of mail

States could use. Because slower mail could take

longer to arrive, the modification would extend the

time for States to complete their mail programs to 90

days before a federal election. 138 Cong. Rec. S10,736

(daily ed. May 7, 1992). That explanation ties the 90day period to the mechanics of a mass verification

process—exactly the kind of process the Committee

reports later described.

13

NVRA’s Section 8(c)(1) expressly authorizes a

State to use National Change of Address information

to identify registrants whose addresses may have

changed. 52 U.S.C. § 20507(c)(1). The very next

paragraph imposes the 90-day deadline on a program

systematically removing ineligible voters, subject to

enumerated exceptions and “correction of registration

records pursuant to this chapter.” Id. §

20507(c)(2)(A)–(B). Section 8(d) then supplies the

notice-and-waiting procedure for residence changes.

Id. § 20507(d). Residence is not the only subject of

Section 8(c)(2). But, it is powerful historical context

for what Congress was trying to prevent: a State

launches a broad address-focused program close to an

election, uses mass or database information to infer

that existing registrants have moved or otherwise

become ineligible, and mistakenly removes eligible

voters who cannot repair the error before Election

Day. The concern here was not a State taking action

to remove voters who never had the right to vote in

the first place.

This Court’s decision in Husted v. A. Philip

Randolph Institute confirms the real concern in the

NVRA. 584 U.S. 756 (2018). Husted addressed Ohio’s

supplemental process for registrants suspected of

having moved and explained the NVRA’s rules

governing removals for change of residence and

failure to vote. Id. at 761–67. The opinions discussed

Congress’s

concern

with

historical

purge

mechanisms. See id. at 806–08 (Sotomayor, J.,

dissenting) (citing H.R. Rep. No. 103-9, at 2, and S.

Rep. No. 103-6, at 18). Whatever disagreements

existed in Husted about Ohio’s particular process, the

congressional materials identify the same historical

14

problem: protecting valid registrants from erroneous

or discriminatory purge practices. The fact that the

practices involved valid registrants is key.

Nothing in the cited Committee discussions

recasts a person who lacked an antecedent voting

qualification – citizenship – as a valid registrant who

later became ineligible. To the contrary, the House

Report separately preserves the election official’s

traditional role in deciding applicant eligibility,

including citizenship. H.R. Rep. No. 103-9, at 8. The

two parts of the legislative history thus fit together:

eligibility screening should determine who lawfully

enters the roll; Section 8’s purge safeguards constrain

how States maintain the status of the validly

registered electorate. Where a State discovers that a

person unlawfully entered the roll, the removal of the

always-invalid registration should be a matter for

States to determine and implement with fidelity to

those who are actually citizens and who actually hold

the right to vote.

IV. THE HISTORICAL DISTINCTION

SUPPORTS BELL, NOT A RULE THAT

TEMPORARILY PROTECTS

REGISTRATIONS INVALID FROM

INCEPTION.

The Sixth Circuit’s decision in Bell v. Marinko is

consistent with this history. Bell held that Congress,

in specifying permissible removals, did not intend to

bar correction of registrations belonging to persons

“ineligible and improperly registered to vote in the

first place.” 367 F.3d at 591–92. The court reasoned

that the contrary reading would effectively grant and

15

protect a franchise to persons not eligible to vote. Id.

at 592.

Bell’s

conclusion

follows

the

traditional

registration model. A removal restriction designed

around the continued status of registrants does not

ordinarily answer the antecedent question whether a

person ever had a lawful entitlement to registration.

Correcting an entry that should never have been

made is not conceptually identical to withdrawing a

registration that was lawful when made.

Arcia adopted a different – and historically flawed

– approach. The Eleventh Circuit reasoned that

because citizenship is an eligibility requirement, a

program to remove noncitizens is necessarily a

program to remove “ineligible voters,” and it stressed

that Congress did not expressly list citizenship among

the exceptions to the 90-day rule. 772 F.3d at 1344–

46. The Ninth Circuit below followed Arcia and held

Arizona’s database-comparison process systematic

within the meaning of the provision. Mi Familia Vota,

129 F.4th at 715–17.

But that reasoning assumes the very point history

calls into question. The question is not whether a

noncitizen is ineligible to vote. Of course a noncitizen

is ineligible to vote in federal elections. See 18 U.S.C.

§ 611(a). The question is whether Congress used the

statutory phrase “ineligible voters” in Section 8(c)(2)

to include every ineligible person whose name

appears on a registration list—even a person who

never possessed the qualification that would have

entitled the person to become a voter.

16

The historical materials provide a reason to

answer no. American voter registration law long

recognized legal entitlement to registration as

distinct from the ministerial fact of being entered on

a list. The NVRA itself begins with eligible applicants

and

preserves

State

officials’

eligibility

determinations – and this preservation of the States’

ability to determine is key here. The House Report

identifies citizenship as exactly such an applicanteligibility determination. And the history of the 90day rule focuses on purge and address-verification

programs aimed at the continuing status of existing

registrants whose right to register in the first place

was never questioned.

Of course, State procedures remain subject to

constitutional constraints, other federal voting laws,

and any requirements of the NVRA that actually

apply. An election official cannot convert speculation

into lawful cancellation merely by labeling it an

eligibility correction. Section 8(b) independently

requires any State program or activity maintaining

an accurate and current roll to be uniform,

nondiscriminatory, and compliant with the Voting

Rights Act. 52 U.S.C. § 20507(b)(1).

The narrow question here is whether Section

8(c)(2)(A)’s 90-day prohibition itself was historically

directed to correcting registrations that were invalid

from inception because an antecedent qualification

was absent. The sources discussed above do not

support that extension.

Indeed, extending the 90-day bar to that category

produces an inversion of the statutory design.

Congress required registration opportunities for

17

eligible citizens, required accurate rolls, preserved

State eligibility determinations, and protected

legitimate registrants against overbroad purge

programs. 52 U.S.C. §§ 20501(b), 20507(a), (b). A rule

that treats an admittedly never-qualified person as

federally protected from systematic correction solely

because an erroneous entry survived until day ninety

violates the integrity of what it means to be a lawful

voter in this nation. It removes, little by little, the

weight and solemnity of citizens who make an

intentional decision to choose their representatives

and erodes their faith in an accurate, accountable

system.

CONCLUSION

In summary, citizenship is an antecedent

qualification to the right and ability to vote. If such a

qualification never existed in the first place, States

retain their right – and, in fact, have a responsibility

– to remove such persons from the legal voting rolls.

The 90-day restriction in the NVRA is rooted in

concerns over systematic maintenance of the

registered electorate that, if applied too close to the

election, may violate the rights of actual citizens.

Considered with that foundation, Section 8(c)(2)(A)

does not require Arizona to treat a registration as

valid when the core qualification for the right to vote

is missing.

For the foregoing reasons, the judgment of the

United States Court of Appeals for the Ninth Circuit

should be reversed.

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Respectfully submitted,

Kristine L. Brown

6501 E. Belleview Ave, Ste. 375

Denver, CO 80111

720-285-9552

kbb@advancecolorado.org

Counsel for Amicus Curiae Advance Colorado

September 3, 2026

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