By: Mike Feeney

On September 26, 2022, a federal judge for the District Court of Arizona issued a preliminary injunction blocking two voter registration provisions of Arizona Senate Bill 1260 (“S.B. 1260”). The District Court’s order was a major victory for the Arizona Alliance for Retired Americans, Priorities USA, and Voto Latino (the “Plaintiffs”), who collectively filed a complaint challenging the constitutionality of S.B. 1260 on August 15, 2022. Arizona Governor, Doug Ducey, signed S.B. 1260 in June of 2021, and the law was scheduled to take effect in September 2022. But a variety of voting groups have characterized S.B. 1260 as a punitive law aimed to severely burden Arizona voters who tend to be more residentially transient, such as younger voters, poorer voters, non-white voters, and older voters who move to Arizona to retire. S.B. 1260 includes the two provisions blocked by the District Court: A.R.S. § 16-1016(12) (the “Felony Provision”) and A.R.S. § 16-165(A)(10), (B) (the “Cancellation Provisions”).

The Plaintiffs alleged that the Felony Provision severely burdens voter mobilization groups by criminalizing extensive forms of voting activity in a vague and unconstitutional manner. The Felony Provision provides that “[a] person is guilty of a class 5 felony who . . . knowingly provides a mechanism for voting to another person who is registered in another state, including by forwarding an early ballot addressed to another person.” A.R.S. § 16-1016(12). Although S.B. 1260 does not define “mechanism for voting,” the District Court found that, because the statute specifies that an example of a mechanism for voting includes an early ballot, the statute intends to criminalize more than just providing an early ballot as such a mechanism. As a result, given that nothing in the text of S.B. 1260 informs or limits what other items might constitute “mechanisms for voting,” the District Court’s order found S.B. 1060’s Felony Provision as “too vague to give people of ordinary intelligence notice of whether knowingly registering out-of-state voters is a crime.”

The Plaintiffs further alleged that the Cancellation Provisions threaten the voting rights of residentially transient Arizona voters. The Cancellation Provisions require Arizona county recorders to cancel a voter’s registration when they “receive confirmation from another county recorder that the person registered has registered to vote in that other county,” A.R.S. § 16-165(A)(10), or when the county recorder “receives credible information that a person has registered to vote in a different county . . . [and] confirm[s] the person’s voter registration with that other county,” A.R.S. § 16-165(B). Neither of these provisions requires county recorders to receive directauthorization from the voter to remove their registration from the rolls.

The District Court found that the Cancellation Provisions fail to comply with the National Voter Registration Act (the “NVRA”). As the District Court noted in its order, the NVRA requires a state to adhere to one of three procedures before removing a voter from the voting roll. First, a voter can directly request state officials to remove the voter’s registration from the voting. Second, if a state believes a registrant has changed residence, the state may remove the voter’s name from the voting roll “if the registrant has confirmed in writing that the registrant has changed to a place outside the registrar’s jurisdiction.” Finally, a state may remove a voter from the voting roll after providing notice to the voter followed by a specified waiting period. The District Court noted that S.B. 1260 does not follow any of these procedures, and instead allows county recorders to cancel a voter’s registration without any notice to a registrant before removing a person from the voting rolls. Thus, the District Court blocked the Cancellation Provisions because they improperly vest removal confirmation in county recorders, and not the voters themselves.

The Felony Provisions and the Cancellation provisions of S.B. 1260 would have been a formidable barrier to voter mobilization groups and residentially transient Arizonan voters, particularly in light of the upcoming 2022 midterm elections throughout Arizona. Following the District Court’s September 26 preliminary injunction, however, voter mobilization groups and residentially transient Arizonans can proceed with a tentative assurance that important elements of their voting rights will be preserved in the upcoming 2022 midterm elections in Arizona.

Mike graduated from the University of Notre Dame with a B.A. in History and Political Science and is currently a 2L at Sandra Day O’Connor of Law. When not in law school, Mike enjoys spending time with his family, playing basketball, and passionately supporting the Phoenix Suns.