WASHINGTON – The Supreme Court on Monday rejected a request by Republican legislative leaders who argued they could not be forced to answer questions from voting rights groups challenging the passage of two Arizona voting laws that will take effect in 2022.
Arizona House Speaker Ben Toma and Senate President Warren Petersen said legislative privilege protected them from being deposed by opponents of the laws, which would make it easier for officials to cancel the registration of voters who cannot prove their citizenship.
But lower courts said Toma and Petersen waived that right when they joined the lawsuit to defend the laws, and the Supreme Court declined to intervene late Monday. It denied their request for an emergency stay without comment.
Lydia Guzman, who testified in the case for both Chicanos Por La Causa and the League of United Latin American Citizens, welcomed the high court’s order and said lawmakers should face questions about why they passed the laws.
“You know, from a Latino point of view, I can guess what their intentions are,” Guzman said on Tuesday. “But I think it’s only fair that they say it.”
In their petition to the Supreme Court, Toma and Petersen urged the court to act before Tuesday, when they said they could be deposed in the case. Requests for comment from the leaders and their lawyers were not immediately returned on Tuesday, and it could not be determined whether they had in fact been deposed.
Monday’s order is the latest twist in a challenge that began the day after the first two election laws were signed by then-Gov. Doug Ducey.
Eight separate challenges were filed by more than 20 plaintiffs, including the Department of Justice, the national and state Democratic parties, Native American tribes, Hispanic, student and voting rights groups. They were consolidated into one lawsuit against the state and county recorders.
The lawsuits targeted HB 2492 and HB 2243.
HB 2492 requires a person to provide proof of citizenship and address before registering to vote. If challenged, voters would have to go to a county recorder or the attorney general with proof of citizenship.
HB 2243 requires a county recorder to cancel a voter’s registration if the recorder receives and verifies information that the person is not a U.S. citizen, is not a resident of Arizona, or has been issued a driver’s license or non-driver’s license in another state.
When he signed HB 2492 into law in March 2022, Ducey said more than 11,600 Arizona voters had failed to provide proof of citizenship since the 2020 election. In a letter to then-Secretary of State Katie Hobbs, Ducey said the state had a “proud history of making voting accessible” and that the bill aimed to ensure election integrity.
“Election integrity means counting every lawful vote and prohibiting any attempt to vote illegally,” Ducey wrote. “H.B. 2492 is a balanced approach that honours Arizona’s history of making voting accessible without sacrificing the security of our elections.”
Opponents argue that the laws are racially motivated attempts to disenfranchise minority voters, in violation of federal law and the 14th Amendment’s guarantee of equal protection.
Then-Attorney General Mark Brnovich initially defended the law. But when Attorney General Kris Mayes, a Democrat, took office this year, Toma and Petersen asked to intervene in the case to make sure the laws were vigorously defended.
After the two leaders joined the case, the plaintiffs sought to question them about the reasons for passing the laws, which they said “make it harder to register to vote, harder to stay registered, and harder to cast a ballot”.
Toma and Petersen said they had turned over more than 90,000 pages of documents, along with written responses to some of the plaintiffs’ questions. But they refused to answer other questions about the motives behind the law, saying it violated legislative privilege, which protects lawmakers from being sued for “legitimate legislative activity”.
The plaintiffs said they respected the privilege, but that Toma and Petersen waived it when they joined the lawsuit and argued that there was no malicious intent behind the laws. They could have intervened in the case as friends of the court, but chose not to, and now “have only themselves to blame for … being subjected to the same discovery to which every other party in civil litigation is subject,” their filing said.
A federal district judge in Arizona agreed, and the 9th US Circuit Court of Appeals ultimately upheld that ruling on 17 November. The lawmakers asked the Supreme Court to put the circuit court’s ruling on hold while they seek a writ of mandamus – an order directing lower courts to reverse a decision.
The plaintiffs said the leaders’ petitions were little more than a delaying tactic to keep the laws in place before the presidential primary set for March 2024.
Guzman, who is LULAC’s state director, said Toma and Petersen should be subject to discovery.
“Show us where this (the laws) came from, show us the intent, show us,” Guzman said. “I’m hoping that with this discovery will come a look at some of the emails when they were drafting this.”
Alex Gulotta, the state director of All Voting is Local Arizona, echoed Guzman’s message.
“Lawmakers pass laws for inappropriate reasons,” Gulotta said in a statement. “The public deserves to know, and the courts should consider those motives when determining whether those laws should be struck down.”