Eleven Judges Dissent from Refusal to Rehear Challenge to Arizona Voter-Verification Laws

In an order today (in Mi Familia Vota v. Petersen), the Ninth Circuit denied rehearing en banc of a panel ruling that invalidated various voter-verification provisions that Arizona enacted in 2022. Judge Patrick Bumatay vigorously dissented from that panel ruling, and today eleven judges (including Bumatay) objected to the Ninth Circuit’s refusal to rehear the matter en banc.

This is a complicated case that I will not undertake to summarize. I will note that it does seem likely to catch the Supreme Court’s attention. Among other things, the panel invalidated a provision that five justices of the Supreme Court had reinstated in August 2024.

Here is an excerpt from Judge Ryan Nelson’s lead dissent today (some citations simplified or omitted):

Most egregiously, the panel majority ignored both Supreme Court and Ninth Circuit precedent when it upheld the district court’s injunction enjoining Arizona’s documentary proof of citizenship requirement (DPOC) for voters registering through Arizona’s state form. It reversed a motions panel before it even heard the merits of the case. And it upheld the district court’s injunction despite the Supreme Court’s indication that Arizona’s requirement was lawful in this very case. And the Supreme Court has cited Arizona’s prior citizenship documentation requirement in dicta as the example of a permissible state form requirement. See Arizona v. Inter Tribal Council of Az., Inc., 570 U.S. 1, 12 (2013). These are bold judicial moves by the majority and warrant a high burden to justify such departures. The majority failed this test and got fundamental legal principles wrong.

The majority opinion mangles our circuit’s analysis of National Voter Registration Act (NVRA) preemption issues. In enacting the NVRA, “Congress only sought to regulate the times, places, and manner of electing Representatives and Senators” in a limited capacity. Congress could not completely abrogate the “considerable freedom” states have “to design their own election laws.” The majority misinterprets the NVRA to preempt state law when it either could not do so (i.e., in Presidential elections), see U.S. Const. art. II, § 1, cl. 2, 4, or does not do so (i.e., in Congressional elections), see U.S. Const. art. I, § 4, cl. 1.

Finally, the majority opinion creates a circuit split with the Sixth Circuit, which correctly held that the NVRA does not “bar the removal of names from the official [state voter rolls] of persons who were ineligible and improperly registered to vote in the first place.” The majority interprets 52 U.S.C. § 20507 to protect such individuals, placing us on the wrong side of a circuit split.