Petition for Writ of Certiorari — Warren Petersen, President of the Arizona Senate, et al., Petitioners v. Mi Familia Vota, et al.
Supreme Court briefFeb 19, 2026
Ask Donna
What actually matters in this document.
Text
No. __________
In the Supreme Court of the United States
WARREN PETERSEN, IN HIS OFFICIAL CAPACITY AS
THE PRESIDENT OF THE ARIZONA SENATE, AND
STEVE MONTENEGRO, IN HIS OFFICIAL CAPACITY AS
THE SPEAKER OF
THE ARIZONA HOUSE OF REPRESENTATIVES
Petitioners,
v.
MI FAMILIA VOTA, ET AL.,
Respondents.
ON PETITION FOR WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
PETITION FOR WRIT OF CERTIORARI
Kory Langhofer
Counsel of Record
Thomas Basile
STATECRAFT PLLC
649 North Fourth Avenue
1st Floor
Phoenix, AZ 85003
(602) 382-4078
kory@statecraftlaw.com
FEBRUARY MMXXVI
Attorneys for Petitioners
United States Commercial Printing Company • www.uscpc.us • (202) 866-8558
i
QUESTIONS PRESENTED
Arizona’s state voter registration form requires applicants to provide proof of citizenship and proof of
residence. Registrants who have not provided proof of
citizenship may not vote by mail. The district court
found that the mail-in voting restriction and the proof
of citizenship and residence requirements for the state
form are preempted by the National Voter Registration Act (NVRA) and, in the case of citizenship, by a
consent decree. This Court stayed the district court’s
injunction against the proof of citizenship requirement. A divided Ninth Circuit panel affirmed the injunction. It also reversed the district court’s conclusion that H.B. 2243, a related law that requires elections officials to check various databases to identify
non-citizen or non-resident voters, was not intentionally discriminatory. Over 11 dissents, the Ninth Circuit denied rehearing en banc. The questions presented are:
1. Whether the NVRA or a prior consent decree
precludes Arizona from requiring documentary proof
of citizenship and residence when applicants use its
state-specific form to register to vote in federal elections.
2. Whether the NVRA preempts Arizona’s prohibition on mail-in voting by registrants who have not
provided proof of citizenship.
3. Whether the district court clearly erred in concluding that H.B. 2243 was not motivated by discriminatory animus.
ii
PARTIES TO THE PROCEEDINGS
The petitioners are Warren Petersen, in his official
capacity as the President of the Arizona Senate, and
Steve Montenegro, in his official capacity as the
Speaker of the Arizona House of Representatives. The
petitioners were intervenor-defendants in the consolidated district court proceedings and appellants in the
court of appeals proceedings.
The respondents are: the United States of America,
Mi Familia Vota, Voto Latino, Living United for
Change in Arizona, League of United Latin American
Citizens, Arizona Students’ Association, ADRC Action,
Inter Tribal Council of Arizona, Inc., San Carlos
Apache Tribe, Arizona Coalition for Change, Poder
Latinx, Chicanos Por La Causa, Chicanos Por La
Causa Action Fund, Democratic National Committee,
Arizona Democratic Party, Arizona Asian American
Native Hawaiian and Pacific Islander For Equity Coalition, Promise Arizona, Southwest Voter Registration Education Project, Tohono O’odham Nation, Gila
River Indian Community, Keanu Stevens, Alanna Siquieros, and LaDonna Jacket. The respondents were
plaintiffs in the consolidated district court proceedings and appellees in the court of appeals proceedings.
Promise Arizona, Southwest Voter Registration Education Project were cross-appellants in the court of appeals proceedings.
The Republican National Committee, the State of
Arizona, the Arizona Secretary of State, the Attorney
General of Arizona, Arizona Department of Transportation Director Jennifer Toth, the Apache County Recorder, the Cochise County Recorder, the Coconino
County Recorder, the Gila County Recorder, the
iii
Graham County Recorder, the Greenlee County Recorder, the La Paz County Recorder, the Maricopa
County Recorder, the Mohave County Recorder, the
Navajo County Recorder, the Pima County Recorder,
the Pinal County Recorder, the Santa Cruz County
Recorder, the Yavapai County Recorder, and the
Yuma County Recorder were defendants in the consolidated district court proceedings.
RELATED PROCEEDINGS
United States District Court (D. Ariz.):
Mi Familia Vota v. Fontes, No. 2:22-cv0509 (consolidated) (May 2, 2024) (judgment entered)
United States Court of Appeals (9th Cir.):
Mi Familia Vota v. Petersen, No. 24-3188
(Feb. 25, 2025) (judgment entered)
Mi Familia Vota v. Mayes, No. 24-3559
(Feb. 25, 2025) (judgment entered)
Promise Arizona v. Petersen, No. 24-4029
(Feb. 25, 2025) (judgment entered)
Mi Familia Vota, et al. v. Adrian Fontes, et
al., No. 24-3188, No. 24-3559, No. 244029 (Sep. 22, 2025) (rehearing denied)
iv
Supreme Court of the United States:
Republican National Committee v. Mi Familia Vota, No. 24A164 (Aug. 22, 2024)
(partial stay entered)
Republican National Committee v. Mi Famila Vota, et al., No. 25A673 (Dec. 9,
2025) (application granted by Justice
Kagan extending the time to file until
February 19, 2026)
v
TABLE OF CONTENTS
Questions Presented ................................................... i
Parties to the Proceedings ......................................... ii
Related Proceedings .................................................. iii
Table of Authorities..................................................... x
Introduction .................................................................1
Opinions Below ............................................................4
Jurisdiction ..................................................................4
Constitutional and Statutory Provisions Involved ...4
Statement of the Case .................................................5
I.
Factual Background .........................................5
II. Procedural History ...........................................8
Reasons for Granting the Petition ............................ 10
I.
The Decision Below Is Irreconcilable with
Inter Tribal Council and Unconstitutionally
Subordinates State Legislatures to Federal
Consent Decrees ............................................. 11
A.Documentary Proof of Citizenship and
Residence Are Necessary to Determine a
Prospective Voter’s Eligibility........................ 12
B.State Legislatures’ Lawmaking Powers
Cannot Be Bargained Away in Federal
Consent Decrees ............................................. 19
II. The NVRA Does Not Preempt State Laws
That Regulate Voting Methods ...................... 25
III. The Ninth Circuit Disregarded the
Presumption of Legislative Good Faith,
vi
Resurrected the Discredited “Cat’s Paw”
Theory of Legislative Intent, and Failed to
Defer to the District Court’s Well-Supported
Findings .......................................................... 32
Conclusion ................................................................. 38
Appendix
Volume I
Appendix A
Opinion [on merits] (CA9 ECF No. 242.1), United
States Court of Appeals for the Ninth Circuit, Mi
Familia Vota, et al. v. Adrian Fontes, et al.,
No. 24-3188, No. 24-3559, No. 24-4029
(Feb. 25, 2025) ............................................. App-1
Appendix B
Amended Order [amended post-trial ruling] (D.
Ariz. ECF No. 709), United States District Court
for the District of Arizona, Mi Familia Vota, et al.
v. Adrian Fontes, et al.,
No. CV-22-00509-PHX-SRB
(Feb. 29, 2024) ......................................... App-182
Appendix C
Final Judgment (D. Ariz. ECF No. 720), United
States District Court for the District of Arizona,
Mi Familia Vota, et al. v. Adrian Fontes, et al.,
No. CV-22-00509-PHX-SRB
(May. 2, 2024) .......................................... App-355
vii
Appendix D
Order [motions panel order partially granting
stay application], United States Court of Appeals
for the Ninth Circuit, Mi Familia Vota, et al. v.
Adrian Fontes, et al.,
No. 24-3188, No. 24-3559, No. 24-4029
(Jul. 18, 2024) ........................................... App-362
Appendix E
Order [merits panel order vacating stay], United
States Court of Appeals for the Ninth Circuit, Mi
Familia Vota, et al. v. Adrian Fontes, et al.,
No. 24-3188, No. 24-3559, No. 24-4029
(Aug. 1, 2024) ........................................... App-366
Volume II
Appendix F
Order [ruling on motion to dismiss] (D. Ariz. ECF
No. 304), United States District Court for the District of Arizona, Mi Familia Vota, et al. v. Adrian
Fontes, et al.,
No. CV-22-00509-PHX-SRB
(Feb. 16, 2023) .......................................... App-409
Appendix G
Order [ruling on summary judgment motions] (D.
Ariz. ECF No. 534), United States District Court
for the District of Arizona, Mi Familia Vota, et al.
v. Adrian Fontes, et al.,
No. CV-22-00509-PHX-SRB
(Sep. 14, 2023) .......................................... App-466
viii
Appendix H
Consent Decree [LULAC consent decree] (Trial
Exh. 24), United States District Court for the District of Arizona, Mi Familia Vota, et al. v. Adrian
Fontes, et al.,
No. CV-22-00509-PHX-SRB
(Jun. 18, 2018) .......................................... App-522
Appendix I
Order [rehearing denied], United States Court of
Appeals for the Ninth Circuit, Mi Familia Vota,
et al. v. Adrian Fontes, et al.,
No. 24-3188, No. 24-3559, No. 24-4029
(Sep. 22, 2025) .......................................... App-546
Appendix J
Order in Pending Case [stay granted in part], Supreme Court of the United States, Republican
Nat. Comm., et al. v. Mi Familia Vota, et al.,
No. 24A164 (Aug. 22, 2024) ....................... App-583
Appendix K
Constitutional and Statutory Provisions .. App-585
United States Constitution:
Article I, §4, cl. 1 .................................. App-585
Article II, §1, cl. 3 ................................ App-586
52 U.S.C. §10101 Voting Rights ............. App-587
52 U.S.C. §20501 Findings and Purposes
............................................................... App-599
52 U.S.C. §20505 Mail Registration ....... App-600
52 U.S.C. §20506 Voter Registration Agencies
............................................................... App-602
ix
52 U.S.C. §20507 Requirements with Respect
to Administration of Voter Registration
............................................................... App-608
52 U.S.C. §20508 Federal Coordination and
Regulations ........................................... App-619
A.R.S. §16-121.01 Requirements for Proper
Registration; Violation; Classification. App-621
A.R.S. §16-123 Proof of Location of Residence
............................................................... App-626
A.R.S. §16-127 Federal Only Voters; Early Ballot Eligibility; Exemption ..................... App-627
A.R.S. §16-165 Causes for Cancellation; Report
............................................................... App-628
A.R.S. §16-166 Verification of Registration
............................................................... App-637
A.R.S. §12-1841 Parties; Notice of Claim of Unconstitutionality ..................................... App-643
Appendix L
AZ HB2243 ................................................. App-646
Appendix M
AZ HB2492 ................................................. App-663
x
TABLE OF AUTHORITIES
Cases
Abbott v. Perez,
585 U.S. 579 (2018)...................................... 3, 33, 36
Alexander v. South Carolina State Conference of the
NAACP,
602 U.S. 1 (2024).............................................. 32–34
Arizona v. Inter Tribal Council of Ariz., Inc.,
570 U.S. 1 (2013). 2, 6, 10, 12–16, 18–19, 24, 27, 30
Arlington Heights v. Metropolitan Housing
Development Corp.,
429 U.S. 252 (1977)..................................................3
Ayestas v. Davis,
584 U.S. 28 (2018).................................................. 15
Brnovich v. Democratic National Committee,
594 U.S. 647 (2021).................................. 3–4, 34–37
Bufkin v. Collins,
604 U.S. 369 (2025)................................................ 27
Carcieri v. Salazar,
555 U.S. 379 (2009)................................................ 27
City of S. Miami v. Governor,
65 F.4th 631 (11th Cir. 2023) ................................ 35
CSX Transp., Inc. v. Easterwood,
507 U.S. 658 (1993)................................................ 29
Doe v. Pataki,
481 F.3d 69 (2d Cir. 2007) ..................................... 22
Dunn v. Blumstein,
405 U.S. 330 (1972)................................................ 14
xi
Esteras v. United States,
606 U.S. 185 (2025)................................................ 15
FDA v. Brown & Williamson Tobacco Corp.,
529 U.S. 120 (2000)................................................ 18
Fish v. Kobach,
840 F.3d 710 (10th Cir. 2016) ............................... 15
Frew ex rel. Frew v. Hawkins,
540 U.S. 431 (2004)................................................ 24
Gonzalez v. Arizona,
485 F.3d 1041 (9th Cir. 2007) ............................... 14
Horne v. Flores,
557 U.S. 433 (2009).......................................... 23, 25
Husted v. A. Philip Randolph Institute,
584 U.S. 756 (2018)................................................ 32
Keith v. Volpe,
118 F.3d 1386 (9th Cir. 1997) ............................... 22
Kingdomware Technologies, Inc. v. United States,
579 U.S. 162 (2016)................................................ 31
League of United Latin American Citizens of Arizona
v. Reagan,
No. 2:17-cv-4102 (D. Ariz. 2018)
................................................ 6, 8, 12, 19, 22, 24–25
M’Culloch v. State of Maryland,
17 U.S. 316 (1819).................................................. 15
McDonald v. Bd. of Election Comm’rs. of Chicago,
394 U.S. 802 (1969)................................................ 29
Miller v. French,
530 U.S. 327 (2000).......................................... 20–21
xii
Milliken v. Bradley,
433 U.S. 267 (1977)................................................ 24
Moore v. Harper,
600 U.S. 1 (2023).................................................... 24
Oneok, Inc. v. Learjet, Inc.,
575 U.S. 373 (2015)................................................ 26
Pharmaceutical Research and Mfrs. of America v.
Walsh,
538 U.S. 644 (2003)................................................ 31
Plaut v. Spendthrift Farm, Inc.,
514 U.S. 211 (1995)................................................ 20
Rufo v. Inmates of the Suffolk Cnty. Jail,
502 U.S. 367 (1992).......................................... 21, 23
Sexton v. Beaudreaux,
585 U.S. 961 (2018)................................................ 37
Shoop v. Casanno,
142 S.Ct. 2051 (2022)............................................. 37
Sprietsma v. Mercury Marine, a Div. of Brunswick
Corp.,
537 U.S. 51 (2002).................................................. 29
St. Charles Tower, Inc. v. Kurtz,
643 F.3d 264 (8th Cir. 2011) ................................. 22
State ex rel. Napolitano v. Brown,
982 P. 2d 815 (Ariz. 1999) ..................................... 22
Sw. Airlines Co. v. Saxon,
596 U.S. 450 (2022)................................................ 16
Sys. Fed’n No. 91, Ry. Emp. Dept., AFL-CIO v.
Wright,
364 U.S. 642 (1961)................................................ 21
xiii
Texas v. United States,
809 F.3d 134 (5th Cir. 2015) ................................. 35
Utility Air Regulatory Group v. EPA,
573 U.S. 302 (2014)................................................ 17
Virginia Uranium, Inc. v. Warren,
587 U.S. 761 (2019).................................... 28, 30–32
Yates v. United States,
574 U.S. 528 (2015)................................................ 15
Constitutional Provisions, Statutes, and Rules
U.S. Const., Art. I .................................................. 5, 24
U.S. Const., Art. II ......................................................5
U.S. Const., Amdt. XIV, §1 .........................................4
18 U.S.C. §611 ........................................................... 14
18 U.S.C. §1815 ......................................................... 14
28 U.S.C. §1254 ...........................................................4
52 U.S.C. §10101 ................................................. 5, 8–9
National Voter Registration Act of 1993,
52 U.S.C. §20501, et seq.
......................................... 1–3, 6, 8–9, 11–13, 15–18,
21, 24–26, 28–29, 31–32
52 U.S.C. §20501 ............................................... 1, 5, 31
52 U.S.C. §20503 ....................................................... 30
52 U.S.C. §20504 ................................................. 15, 30
52 U.S.C. §20505 ......... 5, 12–13, 17–18, 26–27, 29–30
52 U.S.C. §20506 ....................................... 5, 16, 18, 30
52 U.S.C. §20507 ............................................... 5, 9, 30
xiv
52 U.S.C. §20508 ............... 5, 11–12, 17, 19, 22, 24, 30
Ariz. Const. art. V, §9 ................................................ 22
Ariz. Const. art. VII, §2 ............................................. 11
Ariz. H.B. 2243 ............................... 3, 7–10, 33, 35, 37
Ariz. H.B. 2492 ...................................................... 7–10
Ariz. Rev. Stat. §12-1841 ............................................5
Ariz. Rev. Stat. §16-121.01 ..... 1, 2, 5, 9, 11, 20, 27, 28
Ariz. Rev. Stat. §16-123 .................................... 1, 5, 11
Ariz. Rev. Stat. §16-127 .............................. 1, 5, 26, 29
Ariz. Rev. Stat. §16-166 .......................................... 1, 5
Ariz. Rev. Stat. §16-542 ........................................ 6, 28
Ariz. Rev. Stat. §16-548 ..............................................6
Ariz. Rev. Stat. §16-565 ..............................................5
Ariz. Rev. Stat. §16-566 ..............................................5
Ariz. Rev. Stat. §41-1080 ............................................5
Fed. R. Civ. P. 60 ....................................................... 25
Other Authorities
Ariz. Att’y. Gen. Op. I13-011 ......................................6
BLACK’S LAW DICTIONARY (12th ed. 2024) ................ 16
John C. Fortier & Norman J. Ornstein, The Absentee
Ballot and the Secret Ballot: Challenges for
Election Reform,
36 UNIV. MICH. J. L. REF. 483 (2003) .................... 28
MERRIAM-WEBSTER DICTIONARY ............................... 17
INTRODUCTION
In the words of one of the eleven Ninth Circuit
judges who dissented from its refusal to rehear this
case en banc, the panel opinion “is profoundly wrong,”
“ignores Supreme Court precedent,” and “does a grave
injustice to republican government.” App. 581 (Nelson,
J., dissenting from denial of rehearing en banc).
This Court’s review is warranted for two reasons:
First, the Ninth Circuit’s decision reinvents the National Voter Registration Act of 1993, 52 U.S.C.
§20501, et seq. (NVRA), into a sweeping federal election administration code that subsumes state-specific
modes of registration and dictates methods of ballot
distribution and casting. This regulatory colossus
bears no resemblance to the text that Congress
adopted, the objectives that Congress articulated, or
this Court’s modest conception of the NVRA as simply
providing a “backstop” for registering to vote in federal elections.
For more than two decades, Arizona has required
“satisfactory evidence of United States citizenship” to
register to vote in state elections. Ariz. Rev. Stat. §16166(F). A set of reforms adopted in 2022 required local
elections officials to “reject” any state-specific voter
registration form that lacks proof of citizenship. Id.
§16-121.01(C). The 2022 law also added a proof of residence mandate. Id. §16-123. And it denied the privilege of voting by mail to registrants who have not provided proof of citizenship. Id. §16-127(A)(2). App. 663–
83. The Ninth Circuit invalidated these provisions of
the 2022 reforms.
2
This Court already signaled to the Ninth Circuit
that it was embarking on a dubious path. In August
2024, it stayed the district court’s injunction against
Ariz. Rev. Stat. §16-121.01(C)—which requires elections officials to “reject” any Arizona state registration
form submission that lacks documentary proof of citizenship. App. 583. The Ninth Circuit “should have
taken the hint.” App. 122 (Bumatay, J., dissenting).
Instead, two judges proceeded to hold that the NVRA
precludes Arizona from requiring on its own registration form proof of citizenship and residence to register
to vote in federal elections. App. 60–62. And with respect to proof of citizenship, the panel majority proclaimed the Arizona Legislature bound by a 2018 consent decree approved by the then-Secretary of State,
which prohibits rejecting state form submissions that
lack proof of citizenship. App. 57–60.
In imputing to the NVRA such expansive preemptive breadth, the panel majority “mangle[d]” the relevant case law and “ignored” this Court’s explicit admonition that “state-developed [registration] forms
may require information” such as “proof-of-citizenship,” Arizona v. Inter Tribal Council of Ariz., Inc., 570
U.S. 1, 12 (2013). App. 556 (Nelson, J., dissenting from
denial of rehearing en banc). And in perpetually subordinating the Arizona Legislature—the locus of sovereignty in Arizona state government—to the dead
hand of a third party’s long-ago litigation decisions,
the panel majority “defac[ed] the carefully constructed
separation of powers designed by our eminent forebearers.” App. 568 (Nelson, J., dissenting from denial
of rehearing en banc).
3
The Ninth Circuit’s creative rendering of the
NVRA’s preemptive scope did not stop there. The
court became the first to hold—some three decades after the statute’s adoption—that it is not confined to
the discrete matter of voter registration. According to
the Ninth Circuit, the NVRA also constrains the
States in regulating methods of distributing and returning ballots. This remarkable reallocation of power
over election administration finds no sustenance in
the NVRA’s text, and reengineers the NVRA into a
cudgel for displacing States’ reasonable limitations on
voting procedures.
Second, the Ninth Circuit’s appraisal of the Arizona
Legislature’s intent in enacting H.B. 2243—a related
law that requires elections officials to check databases
for potential non-citizen and non-resident voters—
resurrected the same reasoning that this Court repudiated in Brnovich v. Democratic National Committee,
594 U.S. 647 (2021). As in Brnovich, the district court
here presided over a lengthy trial, carefully assessed
the credibility of multiple expert witnesses, and exhaustively analyzed the factors that this Court in Arlington Heights v. Metropolitan Housing Development
Corp., distilled as indicia of legislative intent. 429 U.S.
252 (1977). As in Brnovich, the district court concluded that the plaintiffs had failed to discharge their
burden of proving an invidious legislative motive—a
finding that “had ample support in the record.” Brnovich, 594 U.S. at 687. And then, as in Brnovich, the
Ninth Circuit went its own way. Disregarding “the
presumption of legislative good faith,” Abbott v. Perez,
585 U.S. 579, 607 (2018), that anchors the plaintiffs’
evidentiary burden, the panel supplanted the district
4
court’s reasoned assessment of the evidence with its
own. Its deviation from the analytical framework set
forth in Brnovich was so pervasive and palpable that
summary reversal is appropriate.
OPINIONS BELOW
The Ninth Circuit’s panel opinion is reported at 129
F.4th 691 and is reproduced in the Appendix at App.
1–181. The Ninth Circuit’s order denying a rehearing
en banc is reported at 152 F.4th 1153, and is reproduced in the Appendix at App. 546–582. The District
of Arizona’s findings and conclusions are reported at
719 F. Supp. 3d 929, and is reproduced in the Appendix at App. 182–354.
JURISDICTION
The Ninth Circuit’s judgment was entered on February 25, 2025. The Ninth Circuit denied en banc rehearing on September 22, 2025. Justice Kagan extended the time to petition for certiorari until February 19, 2026. This Court has jurisdiction under 28
U.S.C. §1254(1).
CONSTITUTIONAL AND
STATUTORY PROVISIONS INVOLVED
U.S. Const., Amdt. XIV, §1 states:
All persons born or naturalized in the
United States, and subject to the jurisdiction thereof, are citizens of the United
States and of the State wherein they reside. No State shall make or enforce any
law which shall abridge the privileges or
immunities of citizens of the United
5
States; nor shall any State deprive any
person of life, liberty, or property, without due process of law; nor deny to any
person within its jurisdiction the equal
protection of the laws.
Relevant parts of U.S. Const., Arts. I and II, 52
U.S.C. §§10101, 20501, 20505, 20506, 20507, 20508,
Ariz. Rev. Stat. §§16-121.01, 16-123, 16-127, 16-565,
16-566, and 12-1841 are reproduced in the Appendix
at App. 585–683.
STATEMENT OF THE CASE
I.
Factual Background
An eligible person can register to vote in Arizona by
using the federal form promulgated by the U.S. Election Assistance Commission (EAC) or the state form
prescribed by Arizona law. In 2004, the Arizona electorate adopted a statute requiring “satisfactory evidence of United States citizenship” to register to vote.
Ariz. Rev. Stat. §16-166(F). Arizona has since 1996 required proof of lawful presence to obtain a driver’s license or other state-issued ID. Id. §41-1080. Voter registration applicants can satisfy the proof of citizenship
requirement by providing their license or ID number,
which is cross-checked against data maintained by
the Arizona Department of Transportation (ADOT).
Id. §16-166(F)(1). Other acceptable forms of proof of
citizenship include a birth certificate, “pertinent
pages” of a U.S. passport, a naturalization certificate
or number, and certain tribal documents. Id. §16166(F)(2)-(6).
6
In 2013, this Court held that the NVRA prohibited
Arizona from requiring federal form applicants to provide proof of citizenship when registering to vote in
federal elections. Inter Tribal Council, 570 U.S. at 20.
Since Inter Tribal Council, Arizona has registered federal form applicants who do not supply proof of citizenship as “federal-only” voters; they are eligible to
vote only in federal races. See Ariz. Att’y. Gen. Op.
I13-011. As of July 2023, Arizona had 19,439 active
registered federal-only voters. App. 24.
In 2018, the then–Secretary of State entered into a
consent decree in League of United Latin American
Citizens of Arizona v. Reagan, No. 2:17-cv-4102 (D.
Ariz. 2018) (LULAC Consent Decree). The LULAC
Consent Decree provides that when a state form submission is not accompanied by proof of citizenship, the
county recorder must search ADOT records. If citizenship can be confirmed, the applicant is registered as a
full-ballot voter; if it cannot be confirmed, the applicant is registered as a “federal-only” voter. App. 522–
545.
Since 1991, Arizona has permitted no-excuse absentee voting. The early voting period begins 27 days
prior to the election. Ariz. Rev. Stat. §16-542(C). Early
ballots are distributed by mail and may be returned
(either by mail or by personal delivery to a designated
location by the voter or legally authorized third party)
until 7:00 P.M. on Election Day. Id. §§16-548(A), 161005(H)-(I). In-person early voting is available
through the Friday prior to the election, with additional availability in the ensuing three days for voters
facing emergencies. Id. §16-542(A), (E), (H).
7
In 2022, the Legislature passed, and the Governor
signed, H.B. 2492, which included the following
changes to Arizona’s voter registration laws:
•
Applicants who have not provided proof of citizenship may not vote for president or by mail;
•
State form submissions that lack proof of citizenship must be rejected;
•
State form applicants must provide proof of residence, disclose their birthplace, and check a
box confirming their citizenship.
App. 663–683.
A related bill adopted during the same session, H.B.
2243, provides that the county recorders, who are responsible for maintaining voter registrations, must:
•
check the Systematic Alien Verification for Entitlements (SAVE) program maintained by the
U.S. Citizenship and Immigration Services if a
voter is registered as federal-only or if they
have “reason to believe” a voter is not a citizen;
•
periodically check available databases, including SAVE, ADOT, the Social Security Administration, and the National Association for Public Health Statistics and Information Systems,
to research the citizenship status of federalonly voters and, if appropriate, cancel their registrations; and
•
periodically check ADOT records and juror
questionnaire responses to identify registrants
who may not reside in Arizona and, if appropriate, cancel their registrations.
8
App. 646–662.
II.
Procedural History
Various plaintiffs immediately challenged H.B.
2492 and H.B. 2243 under the NVRA, the Fourteenth
and Fifteenth Amendments, the Civil Rights Act of
1964, and the Voting Rights Act of 1965. The district
court consolidated the actions. The district court resolved some of the claims on cross-motions for summary judgment in September 2023. App. 466–521. After a nine-day bench trial in late 2023, the district
court issued rulings in February 2024 that resolved
the remaining claims, and entered a final judgment in
May 2024. App. 182–361. The district court concluded
that:
•
Section 6 of the NVRA, which requires States
to “accept and use” either the federal form or a
compliant state form to register in federal elections, preempted the provisions of H.B. 2492
prohibiting federal-only voters from voting for
president or by mail;
•
State form submissions without proof of citizenship must be processed in accordance with the
LULAC Consent Decree, and state form registrants without proof of residence likewise must
be registered as “federal-only” voters;
•
The state form’s mandatory birthplace field and
citizenship confirmation checkbox violate the
Materiality Provision of the Civil Rights Act, 52
U.S.C. §10101(a)(2)(B), because they are not
“material” in determining a voter’s qualifications;
9
•
The use of SAVE if a recorder has “reason to
believe” a voter is a non-citizen violates 52
U.S.C. §10101(a)(1), which prohibits discriminatory voting-related “standards, practices, or
procedures,” and Section 8(b) of the NVRA,
which requires list maintenance programs to be
“uniform, [and] nondiscriminatory,” 52 U.S.C.
§20507(b)(1);
•
H.B. 2243’s list maintenance programs violate
Section 8(c) of the NVRA to the extent they authorize “systematic[]” registration cancelations
within 90 days preceding a federal election, see
52 U.S.C. §20507(c)(2); and
•
The Arizona Legislature was not motivated by
an intent to discriminate on the basis of national origin when it adopted H.B. 2243.
App. 182–354. The district court enjoined the enforcement of the provisions of H.B. 2492 and H.B. 2243
that are inconsistent with the foregoing findings. App.
355–361.
The petitioners, the Republican National Committee, and the Attorney General filed timely notices of
appeal. Certain plaintiffs filed a cross-appeal on their
intentional discrimination claim. On July 18, 2024, a
Ninth Circuit motions panel unanimously granted a
stay of the district court’s injunction to the extent it
blocked enforcement of Ariz. Rev. Stat. §16-121.01(C),
which requires county recorders to “reject” state form
applications without proof of citizenship. App. 362–65.
Days later, a different panel lifted the stay on a 2-1
vote. App. 366–408. This Court then stayed the injunction against §16-121.01(C) on August 22, 2024.
10
App. 583. Three Justices also would have permitted
enforcement of H.B. 2492’s provisions that prohibit
registrants who lack proof of citizenship from voting
for presidential electors or voting by mail. Id.
On February 25, 2025, the Ninth Circuit reversed
the district court’s finding that H.B. 2243 was not motivated by discriminatory animus, but otherwise affirmed the judgment. Judge Bumatay agreed with the
majority’s invalidation of the checkbox requirement
and the “reason to believe” provision, but otherwise
dissented. App. 1–181. On September 22, 2025, the
Ninth Circuit denied the petitioners’ motion for a rehearing en banc; eleven judges dissented. App. 546–
582.
REASONS FOR GRANTING THE PETITION
The stark and substantial fissures that this case
catalyzed in the Ninth Circuit—eleven judges supported, often in forceful and impassioned terms, a rehearing en banc—bespeak its importance. In blocking
Arizona from requiring proof of citizenship and residence for those who use its state-specific registration
form to register to vote in federal elections, the lower
courts distended the NVRA’s plain text, disregarded
Inter Tribal Council, and displaced the Arizona Legislature’s sovereign authority in state government. In
holding that the NVRA’s preemptive ambit is not limited to voter registration but also threatens State laws
regulating methods of voting, the Ninth Circuit upended the balance of federal-state authority over elections. And in imputing clear error to the district
court’s careful conclusions on questions of legislative
intent, the Ninth Circuit “essentially flip[ped] the
strong presumption of good faith . . . and require[d]
11
the State to disprove any discriminatory motive.” App.
162 (Bumatay, J., dissenting).
This case, which comes to the Court on a non-expedited basis and underpinned by a comprehensive evidentiary record, offers an ideal vehicle for clarifying
the NVRA’s preemptive scope, affirming that federal
consent decrees cannot perpetually paralyze state legislative bodies, and vindicating the presumption of
legislative good faith.
I.
The Decision Below Is Irreconcilable
with Inter Tribal Council and
Unconstitutionally Subordinates State
Legislatures to Federal Consent Decrees
Arizona’s constitutional government, like that of
virtually every State, is constructed on the premise
that only “citizen[s] of the United States” and bona
fide residents may participate in its elections. Ariz.
Const. art. VII, §2(A). To ensure that this parchment
guarantee is realized in election administration, Arizona requires elections officials to reject any state
form submission that lacks documentary proof of citizenship or documentary proof of Arizona residence.
Ariz. Rev. Stat. §§16-121.01(C), 16-123.
According to the Ninth Circuit, proof of citizenship
and residence are not “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” under Section 9 of
the NVRA, 52 U.S.C. §20508(b)(1), and hence cannot
be prerequisites to registering to vote in federal elections. In the case of proof of citizenship, the Ninth Circuit added that Ariz. Rev. Stat. §16-121.01(C) is
12
superseded by the LULAC Consent Decree, which requires county recorders to accept state forms that lack
proof of citizenship and register the applicants as “federal-only” voters.
The Ninth Circuit derogated the NVRA’s careful
dispersion of authority between federal and state actors, and countenanced the constriction of core state
legislative powers through third parties’ litigation settlement agreements. If left uncorrected, these errors
will carry repercussions far beyond the confines of this
case.
A. Documentary Proof of Citizenship and
Residence Are Necessary to Determine
a Prospective Voter’s Eligibility
Citing Arizona’s proof of citizenship mandate as an
example, this Court has recognized that “state-developed [registration] forms may require information”
beyond that demanded by the federal form. Inter
Tribal Council, 570 U.S. at 12. The NVRA “erected a
complex superstructure of federal regulation atop
state voter-registration systems.” Id. at 5. To that end,
the NVRA contemplates two species of mail-in registration forms. The first is the so-called “federal form”
promulgated by the EAC, which the States must “accept and use” to register voters in federal elections. 52
U.S.C. §§20505(a)(1), 20508(a)(2). Section 9 of the
NVRA enumerates certain basic informational items
that the federal form “shall include”—among them, a
sworn affirmation of citizenship. 52 U.S.C. §20508(b).
The EAC also may incorporate into the federal form
any additional informational elements that are “necessary to enable the appropriate State election official
to assess the eligibility of the applicant and to
13
administer voter registration and other parts of the
election process.” Id. The States cannot unilaterally
append onto the federal form their own bespoke mandates or supplements. Inter Tribal Council, 570 U.S.
at 20.
The NVRA also authorizes a second variant of a
mail registration form—to wit, that “develop[ed] and
use[d]” by a State to register voters in federal elections.
52 U.S.C. §20505(a)(2). A state form is NVRA-compliant if it “meets all of the criteria stated in [Section
9(b)].” Id. In other words, the same rubric in Section
9(b) governs the permissible parameters of both the
federal form and the state forms. But their specific
content is determined by different actors—i.e., the
EAC and state legislatures, respectively. The NVRA
thus tempers a nationwide voter registration regime
with deference to federalism and regulatory latitude
to adapt state forms to evolving policy needs. Under
this bifurcated system, “States retain the flexibility to
design and use their own registration forms, but the
Federal Form provides a backstop.” Inter Tribal Council, 570 U.S. at 12.
14
1.
Documentary proof of citizenship and residence are,
almost by definition, “necessary” to verify the eligibility criteria to which they correspond. Only United
States citizens may lawfully register to vote in federal
elections. 18 U.S.C. §§611, 1815(f). And States undisputedly may limit the franchise in federal and state
elections to their bona fide residents. Dunn v. Blumstein, 405 U.S. 330, 343–44 (1972). It requires no great
exegetical or logical feats to conclude that (for example) a birth certificate or U.S. passport may be “necessary” to validate a registrant’s assertion of citizenship.
That undoubtedly is why this Court cited Arizona’s
“proof-of-citizenship requirement” as an “example” of
how Section 9 allows “state-developed forms [to] require information the Federal Form does not.” Inter
Tribal Council, 570 U.S. at 12. It also is why a different panel of the Ninth Circuit previously had no trouble agreeing that Section 9 “plainly allow[s] states, at
least to some extent, to require their citizens to present evidence of citizenship when registering to vote.”
Gonzalez v. Arizona, 485 F.3d 1041, 1050–51 (9th Cir.
2007).
Avoiding any substantive engagement with Inter
Tribal Council on this point, the Ninth Circuit decreed documentary proof of citizenship and residence
to be “not ‘essential’” to determining voting eligibility
because registrants already provide sworn attestations of their qualifications. App. 46, 60–61. To begin
with, the Ninth Circuit’s conclusory equation of “necessary” with “essential” is unpersuasive. “The word
‘necessary’ . . . has not a fixed character, peculiar to
itself. . . . A thing may be necessary, very necessary,
15
absolutely or indispensably necessary. To no mind
would the same idea be conveyed by these several
phrases.” M’Culloch v. State of Maryland, 17 U.S. 316,
414 (1819). Indeed, in some settings, “necessary”
means “merely helpful and appropriate.” Ayestas v.
Davis, 584 U.S. 28, 44 (2018).
A contextual assessment of the word “necessary”
further corrodes the Ninth Circuit’s “essentiality” construction. See generally Esteras v. United States, 606
U.S. 185, 195 (2025) (analyzing “[t]he statutory structure” and “[n]eighboring provisions” in interpretive
inquiry). Section 5 of the NVRA confines forms used
at States’ motor vehicle authorities to register voters
for federal elections to “only the minimum amount of
information necessary” to ascertain an applicant’s eligibility. 52 U.S.C. §20504(c)(2)(B). The addition of the
qualifier “minimum” imbues “necessary” as it is used
in Section 5 with a different (and more stringent) complexion than “necessary” as it is used in Section 9.
Fish v. Kobach, 840 F.3d 710, 733 (10th Cir. 2016) (acknowledging that “Section 5 establishes a stricter
principle than that applied in Inter Tribal . . . under
section 9.”); see also Yates v. United States, 574 U.S.
528, 537 (2015) (noting that “[t]he same words, placed
in different contexts, sometimes mean different
things”).
Finally, the Ninth Circuit’s “essentiality” criterion
is incompatible with Inter Tribal Council. This Court
easily recognized Arizona’s proof of citizenship requirement as an obvious “example” of Section 9’s
proper application. 570 U.S. at 12. It did not tarry over
evidentiary showings or advert to notions of meansend fit. Consistent with its conception of the NVRA as
16
securing a dualist, federal-state voter registration “superstructure,” id. at 5, the Court implicitly but clearly
embraced the more flexible and functionalist connotation of “necessary.”
A holistic assessment of Section 9’s text, the
NVRA’s structure, and Inter Tribal Council thus corroborates Judge Bumatay’s conclusion that “there’s no
reason to read ‘necessary’ information as meaning
only the bare minimum amount of information.” App.
131. Because documentary evidence of citizenship and
residence are “necessary” to verifying those qualifications, the NVRA allows Arizona to mandate them on
its state-specific registration form.
2.
A corollary of the Arizona state form’s compliance
with Section 9 is that it may be distributed in public
assistance agencies because it is “equivalent” to the
federal form. Section 7 of the NVRA provides that
public assistance agencies must make available either
the federal form or “the office’s own form if it is equivalent
to”
the
federal
form.
52
U.S.C.
§20506(a)(6)(A)(ii).
The Ninth Circuit erred in construing “equivalent”
to mean “virtually identical.” App. 61–62. Because the
NVRA does not define “equivalent,” courts should interpret the word “according to its ‘ordinary, contemporary, common meaning.’” Sw. Airlines Co. v. Saxon,
596 U.S. 450, 455 (2022) (cleaned up). In both common
and legal usage, “equivalent” can carry two distinct
valences. It can mean “equal in value, force, amount,
effect, or significance.” BLACK’S LAW DICTIONARY (12th
ed. 2024) (defining “equivalent”). Or it can denote
17
parity in a strict and literal sense. Id. (secondary definition of “nearly equal; virtually identical”); see also
MERRIAM-WEBSTER DICTIONARY (offering multiple
definitions of “equivalent,” including “like in signification or import” and “corresponding or virtually identical especially in effect or function”).
The question of which variation aligns with Congress’ intent is “clarified by the remainder of the statutory scheme . . . because only one of the permissible
meanings produces a substantive effect that is compatible with the rest of the law.” Util. Air Regulatory
Grp. v. EPA, 573 U.S. 302, 321 (2014) (cleaned up). As
discussed supra, the NVRA contemplates two types of
forms for registering voters in federal elections: the
federal form promulgated by the EAC and the bespoke
state form devised by each State through its respective legislative and administrative processes. 52
U.S.C. §20505(a)(1)-(2). But Section 9 furnishes a
common denominator for both forms’ permissible content. Id. §§20505(2), 20508(b). The NVRA thus accords equal status to both forms in virtually every registration-related context. Either form “shall be accepted and used for notification of a registrant’s
change of address.” Id. §20505(a)(3). And States must
make either or both forms “available for distribution
through governmental and private entities.” Id.
§20505(b). The unmistakable import is that, while the
federal form and the state forms are (by definition) not
identical, they are legally and functionally equivalent
to each other.
The Ninth Circuit’s literalist interpretation hence is
dissonant with the NVRA’s overall structure, as well
as common sense. As Judge Bumatay observed, it
18
would “be odd if Congress gave States the flexibility to
create their own form in §20505(a) but then took away
all that freedom through the ‘public assistance agencies’ provision of §20506(a)(6)(A)” unless the state
form is identical to the federal form in all respects except (perhaps) formatting. App. 137. It is similarly inexplicable that Congress would generally mandate the
availability and distribution of both federal and state
forms, especially “for organized voter registration programs,” 52 U.S.C. §20505(b), yet confine public assistance agencies to only the federal form (or a state-produced carbon copy of it).
In sum, the Court should opt for the construction of
“equivalent” that renders the NVRA “a symmetrical
and coherent regulatory scheme.” FDA v. Brown &
Williamson Tobacco Corp., 529 U.S. 120, 133 (2000)
(cleaned up). A state form that complies with Section
9, as Arizona’s state form does, is “equivalent” to the
federal form.
3.
The Ninth Circuit’s “mangl[ing]” of the NVRA undermines Arizona’s ability to safeguard its elections
from illegal voting by non-citizens and non-residents.
App. 556 (Nelson, J., dissenting from denial of rehearing en banc). More broadly, it distorts the dichotomous
voter registration structure that Congress envisioned,
and diminishes the principles of federalism that animated it. Congress’ objective was not to displace the
States in prescribing the means and methods of registering to vote in federal elections. Rather, it sought
only to create “a backstop: No matter what procedural
hurdles a State’s own form imposes, the Federal Form
guarantees that a simple means of registering to vote
19
in federal elections will be available.” Inter Tribal
Council, 570 U.S. at 12. The Ninth Circuit’s opinion
bulldozes this carefully wrought “superstructure.” Id.
at 5. In its place, the Ninth Circuit reinvented the federal form as a Procrustean monolith to which every
state form must rigidly conform, if it is to be used to
register voters in federal elections.
This is a serious error. Section 9 guarantees that
“States retain the flexibility to design and use their
own registration forms.” Id. at 12. To that end, States
may reasonably conclude, as Arizona did, that a boilerplate attestation of eligibility is an inadequate cordon to protect its elections, and that documentary corroboration of an applicant’s citizenship and residence
is “necessary to enable” an assessment of the applicant’s eligibility. 52 U.S.C. §20508(b)(1). In mandating that Arizona must accept defective state form submissions that lack proof of citizenship or residence
and register such applicants to vote in federal elections, the Ninth Circuit’s decision is “incorrect and
consequential.” App. 582 (Bress, J., dissenting from
denial of rehearing en banc).
B. State Legislatures’ Lawmaking
Powers Cannot Be Bargained Away in
Federal Consent Decrees
The Ninth Circuit blocked Arizona’s proof of citizenship requirement for state form registrants on the alternative grounds that it violated the LULAC Consent
Decree, which required that state form applicants who
lack documentary proof of citizenship be registered to
vote in federal elections. App. 57–60. In holding that
a former Secretary of State’s litigation decisions
shackle the Arizona Legislature’s constitutional
20
authority to make laws regulating elections in the
State, the Ninth Circuit acted “extrajudicially” and inflicted “great[] damage to the separation of powers.”
App. 568 (Nelson, J., dissenting from denial of rehearing en banc).
1.
The crux of the Ninth Circuit’s (sparse) reasoning
was that there is “no authority suggesting that Arizona’s state legislature may permissibly nullify a final
judgment entered by an Article III court.” App. 59. In
enacting Ariz. Rev. Stat. §16-121.01(C), however, the
Arizona Legislature did not retroactively “nullify” any
Article III court’s adjudication of a question of federal
law. Rather, it prospectively changed a state statute
to codify a policy that no court had ever found inconsistent with federal law.
That distinction, which the Ninth Circuit confounded, demarcates the perimeter separating the judicial sphere from the legislative. A “retroactive command that federal courts reopen final judgments” contravenes Article III. Miller v. French, 530 U.S. 327,
344 (2000) (citing Plaut v. Spendthrift Farm, Inc., 514
U.S. 211, 218–19 (1995)). Thus, Arizona likely could
not retroactively revoke voter registrations that had
been accepted and effectuated under the LULAC Consent Decree’s provisions. See Plaut, 514 U.S. at 227
(observing that a legislature “may not declare by retroactive legislation that the law applicable to that very
case was something other than what the courts said it
was”).
By contrast, when a legislative body “changes the
law underlying a judgment awarding prospective
21
relief, that relief is no longer enforceable to the extent
it is inconsistent with the new law.” Miller, 530 U.S.
at 347; see also Rufo v. Inmates of the Suffolk Cnty.
Jail, 502 U.S. 367, 388 (1992) (agreeing that “modification of a consent decree may be warranted when the
statutory or decisional law has changed to make legal
what the decree was designed to prevent”). That is because prospective remedies ordained by a consent decree are subordinate to the statutes on which they are
predicated. See Sys. Fed’n No. 91, Ry. Emp. Dept.,
AFL-CIO v. Wright, 364 U.S. 642, 651 (1961) (recognizing that “parties cannot, by giving each other consideration, purchase from a court of equity a continuing injunction”). When those statutes are changed, the
consent decree’s prospective force is extinguished, to
the extent it is inconsistent with the new law. The
Ninth Circuit’s position that litigants can calcify a
specific legal status quo that trumps future amendments to the underlying statutes contradicts this
Court’s precedents and “poses serious constitutional
concerns.” App. 563 (Nelson, J., dissenting from denial
of rehearing en banc).
That the operative change in the law here was precipitated by the Arizona Legislature and not Congress
is immaterial. If anything, it only amplifies the constitutional perils of the Ninth Circuit’s decision by
compounding a separation of powers violation with a
corrosion of federalism. To begin with, the NVRA itself allows States to revise and update their mail registration forms to mandate any information “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
22
process.” 52 U.S.C. §20508(b)(1). This open-ended language contemplates contextual and variable policy
judgments; that a given item of information (such as
proof of citizenship) may be deemed not “necessary” at
one point in time does not foreclose a State from reaching a different determination at another time and in
other circumstances.
More generally, federal courts “have only the most
limited role when determining whether a state has
surrendered [in a consent decree] some inherent authority, such as its authority to modify state statutory
law.” Doe v. Pataki, 481 F.3d 69, 78 (2d Cir. 2007). Under Arizona’s constitution, “the legislature ‘has all
power not expressly prohibited or granted to another
branch of the government.” State ex rel. Napolitano v.
Brown, 982 P. 2d 815, 817 (Ariz. 1999) (cleaned up).
By contrast, the Secretary of State possesses only
those powers affirmatively conferred by law. Ariz.
Const. art. V, §9. Even if the Secretary could permissibly approve the LULAC Consent Decree to resolve
discrete claims brought by particular parties, the Secretary did not—and could not—bargain away the Arizona Legislature’s sovereign authority to prospectively change the statutes governing its state-specific
voter registration form. See Keith v. Volpe, 118 F.3d
1386, 1393 (9th Cir. 1997) (holding that parties to a
consent decree “could not agree to terms which would
exceed their authority and supplant state law”); St.
Charles Tower, Inc. v. Kurtz, 643 F.3d 264, 268 (8th
Cir. 2011) (“While parties can settle their litigation
with consent decrees, they cannot agree to ‘disregard
valid state laws.’” (cleaned up)). No federal consent decree can reorder a State government’s constitutional
23
structure; the Ninth Circuit erred consequentially in
holding otherwise. 1
2.
The Ninth Circuit’s decision reifies the constitutional hazards that occur when a consent decree is
converted from an adjudication of particular parties’
legal rights at a specific moment in time into a quasipermanent public policy diktat. This Court has long
recognized those dangers, especially in the context of
so-called “institutional reform litigation,” in which
consent decrees can “reach beyond the parties involved directly in the suit and impact on the public’s
right to the sound and efficient operation of its institutions.” Rufo, 502 U.S. at 381 (cleaned up). By effectively codifying a specific policy disposition that
may—or may not—be mandated by federal law, such
consent decrees risk enervating democratic accountability. See Horne v. Flores, 557 U.S. 433, 449 (2009)
(“‘Where ‘state and local officials inherit overbroad or
outdated consent decrees . . . they are constrained in
their ability to fulfill their duties as democraticallyelected officials.” (cleaned-up)).
Relatedly, consent decrees that dictate state policies on matters of broad public interest “often raise
sensitive federalism concerns.” Id. at 448. Elected representatives in a State “must be presumed to have a
high degree of competence in deciding how best to discharge their governmental responsibilities,” and their
1 The Ninth Circuit’s rationalization that the Arizona Legisla-
ture is still free to enact effectively unenforceable statutes “neuter[s] the Arizona Legislature by sophistry.” App. 128 (Bumatay,
J., dissenting).
24
familiarity with local exigencies can beget “new insights and solutions.” Frew ex rel. Frew v. Hawkins,
540 U.S. 431, 442 (2004). Consent decrees that impair
State officials’ latitude to innovate and adapt policy
solutions disrupt the constitutional equilibrium between federal and state governments.
Two attributes of the LULAC Consent Decree magnify these problems. First, it constricts authority that
the federal Constitution expressly reserves to the Arizona Legislature. Article I, §4 “‘imposes’ on state legislatures the ‘duty’ to prescribe rules governing federal elections.” Moore v. Harper, 600 U.S. 1, 9 (2023)
(quoting Inter Tribal Council, 570 U.S. at 8). And
state legislatures prescribe the “qualifications” requisite to voting in congressional elections. U.S. Const.,
Art. I, §2; cf. Inter Tribal Council, 570 U.S. at 17 n. 9
(declining to decide whether “registration” could itself
constitute a “qualification”). In this vein, the NVRA
preserves state legislatures’ prerogative to require
any information “necessary” to verifying eligibility to
register to vote in federal elections. 52 U.S.C.
§20508(b)(1). And the LULAC court never adjudicated
Arizona’s proof of citizenship mandate for state form
registrants to be inconsistent with the NVRA or any
other federal law. See Milliken v. Bradley, 433 U.S.
267, 282 (1977) (“[F]ederal-court decrees exceed appropriate limits if they are aimed at eliminating a condition that does not violate the Constitution or does
not flow from such a violation”). The Ninth Circuit’s
holding that litigants in a single case can, via a contractual agreement, indefinitely curtail a legislative
body’s constitutional power is as untenable as it is
novel.
25
Second, the Arizona Legislature is not, and never
was, a party to the LULAC Consent Decree. It is problematic enough when a federal consent decree purports to “bind state and local officials to the policy
preferences of their predecessors.” Horne, 557 U.S. at
449. But here, the Ninth Circuit held that a former
Secretary of State could also bind coordinate branches
of Arizona state government that never participated
in the consent decree’s negotiation or agreed to its
terms. When “different state actors” disagree concerning a consent decree’s validity, “federalism concerns
are elevated.” Id. at 452. And, as a non-party, the Arizona Legislature lacks any procedural vehicle to challenge the LULAC Consent Decree in that proceeding.
See Fed. R. Civ. P. 60(b) (permitting only “a party or
its legal representative” to seek relief from a judgment).
In short, the Ninth Circuit’s conclusion that the Arizona Secretary of State can unilaterally abrogate the
Arizona Legislature’s constitutional authority to regulate voter registration in the State is irreconcilable
with principles of federalism, separation of powers,
and democratic accountability.
II.
The NVRA Does Not Preempt State Laws
That Regulate Voting Methods
As its title conveys, the NVRA establishes methods
for eligible individuals to register to vote in federal
elections. It does not—and in its 33-year existence
never previously had been understood to—limit the
States’ authority over voting methods and procedures.
Arizona does not permit “federal-only” voters—i.e.,
voters who have not provided documentary proof of
citizenship—to receive early ballots by mail. Ariz. Rev.
26
Stat. §16-127(A)(2). These individuals may still vote
early ballots in-person at sites designated by the
county recorder, and likewise may cast ballots (for federal offices only) at polling locations on Election Day.
In holding that §16-127(A)(2) conflicts with the NVRA
and obstructs Congress’ purposes, the Ninth Circuit
went astray, and its error erodes the States’ authority
over their elections in ways that Congress never intended. 2
1.
Arizona’s limitation on mail-in voting does not conflict with Section 6 of the NVRA, which requires the
States to “accept and use” the federal form created by
the EAC when registering voters for federal elections.
52 U.S.C. §20505(a)(1). When Congress exercises its
power under Article I, §4 to “alter” the States’ regulations of the “Times, Places, and Manner of holding”
federal elections, the Court’s customary presumption
against preemption does not apply. Inter Tribal Council, 570 U.S. at 13–14. But even in this context, courts
will not divine an unarticulated preemptive intent.
“Elections Clause legislation [is read] simply to mean
what it says,” and any displacement of state laws
must be apparent from “the fairest reading of the statute.” Id. at 15.
There is no “actual conflict” between any fair reading of Section 6 and Ariz. Rev. Stat. §16-127(A)(2).
2 This Court has described obstacle preemption as a species of
conflict preemption; they are not conceptually independent of
each other. Oneok, Inc. v. Learjet, Inc., 575 U.S. 373, 377 (2015).
Because the Ninth Circuit treated conflict preemption as distinct
from obstacle preemption, however, this Petition will follow suit.
App. 39.
27
Geier v. Am. Honda Motor Co., Inc., 529 U.S. 861, 884
(2000) (citation omitted). Section 6 requires the States
to “accept and use” the federal form “for the registration of voters in elections for Federal office.” 52 U.S.C.
§20505(a)(1). Arizona law is wholly congruent with
that directive. Eligible individuals who submit a completed federal form are registered to vote for federal
elections in Arizona, even if they lack proof of citizenship. Ariz. Rev. Stat. §16-121.01(A), (E).
The Ninth Circuit contrived a conflict with Section
6 on the grounds that individuals “seeking to cast
their ballots by mail [must] provide more information
than what the federal form requires.” App. 39. But
Section 6 does not say that States must “use” the federal form to enable “cast[ing] . . . ballots by mail.” Rather, it ensures only that eligible individuals may “use”
the federal form to effectuate their “registration.”
Courts “are obliged to give effect, if possible, to every
word Congress used.” Carcieri v. Salazar, 555 U.S.
379, 391 (2009) (citation omitted). A corollary is that
courts “are reluctant to treat statutory terms as surplusage in any setting.” Bufkin v. Collins, 604 U.S.
369, 386 (2025) (citation omitted). In directing the
States to “accept and use” the federal form for “registration,” Congress meant just that. A properly completed and timely submitted federal form permits the
applicant to register. See Inter Tribal Council, 570 U.S.
at 12 (describing the federal form as a “backstop” that
provides “a simple means of registering”). It does not
entitle him to utilize any particular means of receiving a ballot, and it does not confer any rights or immunities with respect to state laws governing postregistration facets of the election process.
28
The Ninth Circuit then resorted to slippery-slope
reasoning, imagining the specter of a State that adds
federal form applicants to the voter rolls but does not
allow them to actually vote. App. 41. Preliminarily,
the Ninth Circuit ordered an extra-textual solution to
a non-existent problem. Federal form registrants in
Arizona who do not have proof of citizenship undisputedly can vote (for federal offices) in-person on Election
Day. Ariz. Rev. Stat. §16-121.01(A), (E). They also
may avail themselves of Arizona’s generous in-person
early voting period, which extends for more than three
weeks. See id. §16-542(A), (E). Even assuming arguendo that the ability to cast a vote (in some way,
shape or form) is implicit in the word “registration,” it
does not follow that Congress embedded into the
NVRA an affirmative right to enjoy any and every
mode of obtaining and returning a ballot that a State
may make available. “Being in for a dime doesn’t
mean we have to be in for a dollar.” Va. Uranium, Inc.
v. Warren, 587 U.S. 761, 773 (2019) (plurality op.) (declining to adopt an expansive interpretation of Congress’ preemptive intent).
The Ninth Circuit’s labors to ascribe federal statutory protection specifically to mail-in voting are particularly tenuous. During almost the entirety of our
nation’s history, absentee voting has been the exception, not the rule. See generally John C. Fortier & Norman J. Ornstein, The Absentee Ballot and the Secret
Ballot: Challenges for Election Reform, 36 UNIV. MICH.
J. L. REF. 483, 510 (2003) (absentee ballots accounted
for approximately 2%–14% of total votes cast in presidential elections between 1936 and 2000). Far from
considering absentee voting to be integral to the
29
“fundamental right” to vote, this Court has explicitly
denominated it a discretionary “privilege[].” McDonald v. Bd. of Election Comm’rs. of Chicago, 394 U.S.
802, 807, 809 (1969). Indeed, travel to a polling location is, if anything, part and parcel of “the usual burdens of voting.” Crawford v. Marion Cnty. Election Bd.,
553 U.S. 181, 198 (2008) (plurality op.).
In short, Arizona law aligns fully with Section 6’s
requirement that States “accept and use” the federal
form “for the registration of voters” in federal elections.
52 U.S.C. §20505(a)(1). Individuals who submit a compliant federal form (with or without proof of citizenship) are registered to vote. And they can, in fact, actually vote for federal offices in Arizona. Even if the
phrase “for the registration of voters” in Section 6
meant “for the purpose of voting,” there is no semantic,
textual, or historical support for the novel proposition
that the NVRA secures federal rights to vote by mail.
There accordingly is no conflict between Section 6 and
Ariz. Rev. Stat. §16-127(A)(2).
2.
In enacting the NVRA, Congress did not aspire to
protect access to mail-in voting. Arizona’s ban on mailin voting by registrants who have not proved their citizenship accordingly does not “stand[] as an obstacle
to the accomplishment and execution of the full purposes and objectives of Congress.” Sprietsma v. Mercury Marine, a Div. of Brunswick Corp., 537 U.S. 51,
64 (2002) (cleaned up). “Evidence of pre-emptive purpose is sought in the text and structure of the statute
at issue.” CSX Transp., Inc. v. Easterwood, 507 U.S.
658, 664 (1993).
30
The NVRA’s text and structure evince no preoccupation with protecting particular methods of voting.
Its operative clauses comprise a self-contained “superstructure” governing the discrete and distinct matter
of “voter-registration systems.” Inter Tribal Council,
570 U.S. at 5. Section 4 directs States to “establish
procedures to register to vote in elections for Federal
office” through certain specified means. 52 U.S.C.
§20503(a). Sections 5 through 7 delineate registration
processes at motor vehicles divisions, through mail-in
forms, and at certain government agencies, respectively. Id. §§20504–20506. Section 8 mandates “the
maintenance of an accurate and current voter registration roll” for federal elections and prescribes certain procedures to that end. Id. §20507. And Sections
9 through 13 address the implementation and enforcement of the foregoing provisions. Id. §§20508–20511.
The NVRA’s sole substantive reference to mail-in
voting is found in Section 6(c), which provides that
(subject to certain exceptions) “a State may by law require a person to vote in person if” he registered to
vote by mail and had not previously voted in the jurisdiction. 52 U.S.C. §20505(c). 3 But “if anything,” this
provision “might be described as a non-preemption
clause.” Warren, 587 U.S. at 769. Far from ordaining
affirmative federal protection for mail-in voting, Section 6(c) is “an anti-fraud provision” that simply buttressed the States’ extant authority to structure the
post-registration facets of election administration,
such as distributing and returning ballots. App. 119
3 Section 8(e) alludes to in-person Election Day voting, but it does
so in the specific context of updating a voter’s address information in her registration record. 52 U.S.C. §20507(e).
31
(Bumatay, J., dissenting). To excogitate out of Section
6(c) a proscriptive ban on States’ withdrawal of mailin voting privileges for federal form voters “nearly
turns the provision on its head.” Warren, 587 U.S. at
770.
Propping up its supposition of Congress’ objectives,
the Ninth Circuit cherrypicked from the NVRA’s
“findings and purposes” clause, which reference a desire to “increase” registration rates and to “enhance[]
the participation of eligible citizens as voters in elections for Federal office.” 52 U.S.C. §20501(b)(1)–(2).
Preliminarily, while “purpose” clauses can sometimes
illuminate congressional intent, they cannot expand
or contract “the plain meaning of the operative
clause[s].” Kingdomware Techs., Inc. v. United States,
579 U.S. 162, 173 (2016). As discussed above, the
NVRA’s operative clauses do not regulate mail-in voting. More to the point, “[t]he NVRA had multiple statutory purposes,” to include “preventing voter fraud.”
App. 120–21 (Bumatay, J., dissenting (citing 52 U.S.C.
§20501(b)(3)–(4))). And closely overseeing ballot casting by voters who have not documented their citizenship is consistent with the NVRA’s anti-fraud aims.
The Ninth Circuit’s myopic fixation on increasing voting rates underscores the “danger of invoking obstacle
pre-emption based on the arbitrary selection of one
purpose to the exclusion of others.” Pharm. Research
and Mfrs. of Am. v. Walsh, 538 U.S. 644, 678 (2003)
(Thomas, J., concurring in the judgment).
In sum, a semantic and structural chasm separates
Congress’ generic paeans to voter participation from
the Ninth Circuit’s vision of prescriptive federal authority over States’ ballot casting procedures. “The
32
[NVRA] has two main objectives: increasing voter registration and removing ineligible persons from the
States’ voter registration rolls.” Husted v. A. Philip
Randolph Inst., 584 U.S. 756, 761 (2018). It does not—
and never previously had been construed to—regulate
the post-registration aspects of elections. The Ninth
Circuit’s reconceptualization of the NVRA as a mailin voting statute contravenes the separation of powers
as “a significant judicial intrusion into Congress’s authority to delimit the preemptive effect of its laws.”
Warren, 587 U.S. at 773. And its reasoning gratuitously endangers “all state limitations on absentee
and mail voting.” App. 119 (Bumatay, J., dissenting).
The Court should grant certiorari to correct this serious and inauspicious error.
III.
The Ninth Circuit Disregarded the
Presumption of Legislative Good Faith,
Resurrected the Discredited “Cat’s Paw”
Theory of Legislative Intent, and Failed
to Defer to the District Court’s WellSupported Findings
When a court proclaims that an elected legislative
body acted out of animus against a protected class, “it
is declaring that the legislature engaged in ‘offensive
and demeaning’ conduct.” Alexander v. South Carolina State Conf. of the NAACP, 602 U.S. 1, 11 (2024)
(citation omitted). Due regard for the separation of
powers and the sanctity of the democratic process
teaches that courts “should not be quick to hurl such
accusations at the political branches.” Id. Declining to
heed this admonition, the Ninth Circuit cast aside the
district court’s careful and detailed findings that the
Arizona Legislature had not acted with an intent to
33
discriminate on the basis of national origin when it
enacted H.B. 2243. That facially neutral law requires
Arizona’s county recorders to periodically search various official records, including databases maintained
by federal and state government agencies, to identify
ineligible voters on the rolls. App. 646–62. In upending the district court’s ruling, the Ninth Circuit disregarded at least three pillars of this Court’s Fourteenth
Amendment jurisprudence.
1.
Any plaintiff alleging that a facially neutral law
was propelled by racial or national origin animus
must overcome a “presumption of good faith” by the
legislative body. Abbott, 585 U.S. at 641. In practice,
that means a court must “draw the inference that cuts
in the legislature’s favor when confronted with evidence that could plausibly support multiple conclusions.” Alexander, 602 U.S. at 10. The Ninth Circuit
insisted on conjuring out of “[t]he political climate in
Arizona” in the aftermath of the contested 2020 presidential election “circumstantial evidence of discriminatory intent,” and harped on a post-election audit
conducted by the Arizona Senate, which had found no
widespread voter fraud. App. 76–78. But that is precisely the inferential leap that this Court has repeatedly warned against.
The district court, by contrast, had it right. It noted
that “[n]othing in the legislative hearings evince a motive to discriminate against voters based on race or
national origin.” App. 343. And it properly refused to
extrude a nefarious subtext from legislative debates
about election security, recognizing that “partisan”
passions and political dynamics are not proxies for
34
discriminatory animus. Brnovich, 594 U.S. at 689; see
also Alexander, 602 U.S. at 9–10 (holding in redistricting context that, to defeat the presumption, a plaintiff
must “rul[e] out the competing explanation that political considerations dominated the legislature’s” actions).
Perhaps most importantly, the district court knew
that a law’s objective necessity is not a metric of its
subjective intent. Even if the court believed that concerns about non-citizen voting were factually tenuous,
a “sincere, though mistaken, non-race-based belief”
that election misconduct occurred does not manifest
discriminatory intent. Brnovich, 594 U.S. at 689; App.
344–45. And even if the Arizona Legislature had actually believed that non-citizen voting was not an extant
problem, it still had every right to “take action to prevent [it] without waiting for it to occur and be detected
within its borders.” Brnovich, 594 U.S. at 686.
In short, the Ninth Circuit not only eschewed even
rhetorical fealty to the presumption of legislative good
faith; it “flipp[ed]” it and “essentially requir[ed] the
State to disprove any discriminatory motive.” App.
162 (Bumatay, J., dissenting).
35
2.
The Ninth Circuit revived—in an even more egregious form—the so-called “cat’s paw” theory that the
Court banished in Brnovich. This mode of analysis
posits that one or a few rogue legislators may “dupe”
a voting majority into advancing their malign objectives. 594 U.S. at 689. But “[t]he ‘cat’s paw’ theory has
no application to legislative bodies” because “legislators who vote to adopt a bill are not the agents of the
bill’s sponsor or proponents.” Id.
Lacking any plausible “cat” in the Arizona Legislature itself, the Ninth Circuit turned its gaze outward,
and fixated on the Arizona Free Enterprise Club, a
nonprofit organization that was involved in drafting
and advocating for H.B. 2243. Seizing on the Free Enterprise Club’s isolated use of the term “illegals” in a
single lobbying email to legislators, the Ninth Circuit
pronounced that it “supports a conclusion that” H.B.
2243 was “the product of intentional discrimination.”
App. 79–80.
Preliminarily, the word “illegal” is not a racial slur.
A person’s unlawful immigration status is an objective
legal fact that endures irrespective of race or ethnicity.
See Texas v. United States, 809 F.3d 134, 148 n. 14
(5th Cir. 2015) (“Illegal alien is not an opprobrious epithet; it describes one present in a country in violation
of the immigration laws (hence ‘illegal’)”). More fundamentally, if a fellow legislator is not the “cat’s paw”
of the body, then an outside private organization certainly cannot personify a legislature’s intentions. See
City of S. Miami v. Governor, 65 F.4th 631, 647 (11th
Cir. 2023) (Mizelle, J., concurring) (district court’s reliance on legislature’s use of outside group’s data to
36
infer animus was “ad-hominem reasoning and compounding of attenuated inferences”). And, in any case,
the district court found “no persuasive evidence that
the Legislature relied on the” email. App. 346.
3.
The Ninth Circuit supplanted the district court’s
reasoned weighting of the evidence with its own. Because “the district court’s view of the evidence is plausible in light of the entire record,” the Ninth Circuit
was duty-bound to affirm. Brnovich, 594 U.S. at 687.
In “grasp[ing] at straws” to find some error” in the district court’s ruling, however, the Ninth Circuit “settle[d] on some odd notion that . . . the district court
should have been more pliable to ‘circumstantial’ evidence.” App. 174 (Bumatay, J., dissenting).
But that critique finds easy refutation in the district
court’s exhaustive assessment of the Arlington factors.
The district court duly considered circumstantial historical evidence—namely, past voting-related discrimination and historical experts’ testimony—but
correctly recognized that “[p]ast discrimination cannot, in the manner of original sin, condemn governmental action that is not itself unlawful.” Abbott, 585
U.S. at 603 (citation omitted). And the district court
discounted plaintiffs’ experts’ opinions not because it
adopted an overly stringent standard of proof, but because it deemed them not credible. It found one expert’s analysis “incomplete or misleading,” and “question[ed] the reliability of” the other expert’s “testimony regarding Arizona history” and current election
laws. App. 231–32.
37
Similarly, the district court’s conclusion that there
was “no persuasive evidence of procedural departures”
in the legislative process was buttressed by the sworn
testimony of the Speaker of the Arizona House of Representatives. App. 350–52. And its finding that “any
disparate impact” emanating from H.B. 2243’s voter
list maintenance checks “is markedly small” was
grounded in expert testimony and official voter rolls,
which established that less than 1% of both white and
minority voters in Arizona lack proof of citizenship on
file. App. 318; see also Brnovich, 594 U.S. at 680 (finding no material disparate impact in “[a] policy that appears to work for 98% or more of voters to whom it
applies—minority and non-minority alike”). In short,
the district court did, in fact, consider all the “circumstantial” evidence that the plaintiffs proffered; “it just
found it unconvincing.” App. 174 (Bumatay, J., dissenting). The Ninth Circuit was obligated to affirm,
even if it “would have weighed the evidence differently
in the first instance.” Brnovich, 594 U.S. at 687.
In discarding the district court’s meticulous parsing
of the evidence and carefully reasoned factual findings
on legislative intent, “[t]he Ninth Circuit’s opinion
was not just wrong. It also committed fundamental errors that this Court has repeatedly admonished courts
to avoid.” Sexton v. Beaudreaux, 585 U.S. 961, 967
(2018). When, as here, a “decision [is] obviously wrong
and squarely foreclosed by our precedent,” summary
reversal is appropriate. Shoop v. Casanno, 142 S. Ct.
2051, 2057 (Mem.) (2022) (Thomas, J., dissenting from
denial of certiorari).
38
CONCLUSION
The Court should grant certiorari.
Respectfully submitted,
Kory Langhofer
Counsel of Record
Thomas Basile
STATECRAFT PLLC
649 North Fourth Ave, 1st Fl.
Phoenix, AZ 85003
(602) 382-4078
kory@statecraftlaw.com
February 19, 2026
Counsel for Petitioners
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.