No. ______In the Supreme Court of the United States
REPUBLICAN NATIONAL COMMITTEE, ET AL.
APPLICANTS,v.
MI FAMILIA VOTA, ET AL.
EMERGENCY APPLICATION FOR STAY
To the Honorable Elena Kagan
Associate Justice of the Supreme Court of the United States andCircuit Justice for the Ninth Circuit

TYLER GREEN
Consovoy McCarthy, PLLC
222 Main St., 5th Floor
Salt Lake City, UT 84101
GILBERT C. DICKEYCONOR D. WOODFIN
Consovoy McCarthy, PLLC
1600 Wilson Blvd, Ste. 700
Arlington, VA 22209(703) 243-9423
Counsel for Republican National
Committee

KORY LANGHOFER
Counsel of Record
Statecraft PLLC
649 North Fourth Avenue
1st Floor
Phoenix, AZ 85003(602) 382-4078
kory@statecraftlaw.com
Counsel for Republican National
Committee, Warren Petersen, and Ben
TomaPARTIES TO THE PROCEEDING AND RELATED PROCEEDINGSThe parties to the proceeding below are as follows:
The Applicants are the Republican National Committee, Warren Petersen, in
his official capacity as the President of the Arizona Senate, and Ben Toma, in his
official capacity as the Speaker of the Arizona House of Representatives. The
Applicants were intervenor-defendants in the consolidated district court proceedings
and appellants in the court of appeals proceedings.
The Respondents are 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.
The State of Arizona, the Arizona Secretary of State, the Attorney General of
Arizona, Arizona Department of Transportation Director Jennifer Toth, the ApacheCounty Recorder, the Cochise County Recorder, the Coconino County Recorder, theGila County Recorder, the Graham County Recorder, the Greenlee County Recorder,
the La Paz County Recorder, the Maricopa County Recorder, the Mohave Countyii

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. The State and Attorney General did not appeal the district court rulings
that are the subject of this Application.
The related proceedings below are:
1. Mi Familia Vota v. Petersen, No. 24-3188 (9th Cir.) – Judgment entered
August 1, 2024;
2. Mi Familia Vota v. Mayes, No. 24-3559 (9th Cir.);
3. Promise Arizona v. Petersen, No. 24-4029 (9th Cir.); and4. Mi Familia Vota v. Fontes, No. 2:22-cv-0509 (consolidated) (D. Ariz.) –Judgment entered May 2, 2024.

iii

CORPORATE DISCLOSURE STATEMENTPer Supreme Court Rule 29, Applicant the Republican National Committee
states that it has no parent companies or publicly held companies with a 10% or
greater ownership interest in it.

iv

TABLE OF CONTENTSTABLE OF AUTHORITIES ............................................................................................. ii
OPINIONS BELOW.......................................................................................................... 3
JURISDICTION ................................................................................................................ 3
CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED ........................ 4
STATEMENT .................................................................................................................... 4
REASONS FOR GRANTING THE APPLICATION ...................................................... 7
I.

There Is A Reasonable Probability That Four Justices Would Vote To
Grant Review And A Fair Prospect That This Court Would Reverse. ............7
A. The LULAC Consent Decree Cannot Prohibit the Arizona
Legislature From Enacting Enforceable Statutes Governing Voter
Registration ....................................................................................................7
B. The NVRA Cannot Preempt Arizona’s Qualifications to Vote for
Presidential Electors and Does Not Preempt Arizona’s Mail-In
Voting Laws ..................................................................................................11

II. Applicants Will Suffer Irreparable Harm Absent A Stay ...............................14
CONCLUSION ................................................................................................................ 19

TABLE OF AUTHORITIES
Cases

Page(s)Abbott v. Perez,
585 U.S. 579 (2018) ............................................................................................... 14, 15
Agostini v. Felton,
521 U.S. 203 (1997) ..................................................................................................... 10
Ariz. State Legislature v. Ariz. Indep. Redistricting Comm’n,
576 U.S. 787 (2015) ............................................................................................... 16, 17
Arizona v. Inter Tribal Council of Ariz.,
570 U.S. 1 (2013) ..................................................................................................... 4, 12
Berger v. N.C. State Conf. of the NAACP,
597 U.S. 179 (2022) ................................................................................................. 3, 15
Biodiversity Assocs. v. Cables,
357 F.3d 1152 (10th Cir. 2004) .................................................................................. 11
Brnovich v. DNC,
594 U.S. 647 (2021) ..................................................................................................... 12
Buckley v. Valeo,
424 U.S. 1 (1976) ......................................................................................................... 14
Burroughs v. United States,
290 US. 534 (1934) ...................................................................................................... 14
Cameron v. EMW Women’s Surgical Ctr., P.S.C.,
595 U.S. 267 (2022) ..................................................................................................... 15
Corner Post, Inc. v. Bd. of Governors of Fed. Rsrv. Sys.,
144 S. Ct. 2440 (2024) ................................................................................................. 13
DNC v. Wis. State Legislature,
141 S. Ct. 28 (2020) ............................................................................................. 1, 7, 18
Eu v. S.F. Cnty. Democratic Central Comm.,
489 U.S. 214 (1989) ............................................................................................... 11, 14
Forty-Seventh Legislature v. Napolitano,
143 P.3d 1023 (Ariz. 2006).......................................................................................... 16
Hollingsworth v. Perry,
558 U.S. 183 (2010) ....................................................................................................... 7
Horne v. Flores,
557 U.S. 433 (2009) ....................................................................................................... 9- ii -

Husted v. A. Philip Randolph Inst.,
584 U.S. 756 (2018) ..................................................................................................... 12
Husted v. Ohio State Conf. of N.A.A.C.P.,
573 U.S. 988 (2014) ....................................................................................................... 7
Isaacson v. Mayes,
2023 WL 2403519 (D. Ariz. Mar. 8, 2023) ................................................................. 15
League of United Latin Am. Citizens of Ariz. v. Reagan,
No. 2:17-cv-4102 (D. Ariz. Jun. 18, 2018).................................................................... 2
Leibsohn v. Hobbs,
517 P.3d 45 (Ariz. 2022).............................................................................................. 19
Marston v. Lewis,
410 U.S. 679 (1973) ..................................................................................................... 11
Maryland v. King,
567 U.S. 1301 (2012) ................................................................................................... 14
Mecinas v. Hobbs,
30 F.4th 890 (9th Cir. 2022) ....................................................................................... 17
Merrill v. Milligan,
142 S. Ct. 879 (2022) ................................................................................................... 18
Mi Familia Vota v. Fontes,
691 F. Supp. 3d 1077 (D. Ariz. 2023) ........................................................................... 3
Miller v. French,
530 U.S. 327 (2000) ..................................................................................................... 10
North Carolina v. League of Women Voters of N.C.,
574 U.S. 927 (2014) ....................................................................................................... 7
Plaut v. Spendthrift Farm, Inc.,
514 U.S. 211 (1995) ............................................................................................... 10, 11
Priorities USA v. Nessel,
978 F.3d 976 (6th Cir. 2020)....................................................................................... 16
Purcell v. Gonzalez,
549 U.S. 1 (2006) ............................................................................................... 7, 11, 15
RNC v. DNC,
589 U.S. 423 (2020) ......................................................................................... 1, 3, 8, 18
Rufo v. Inmates of Suffolk 10 Cnty. Jail,
502 U.S. 367 (1992) ..................................................................................................... 10
Students for Fair Admissions, Inc. v. President & Fellows of Harvard Coll.,
600 U.S. 181 (2023) ..................................................................................................... 17- iii -

Tex. Democratic Party v. Benkiser,
459 F.3d 582 (5th Cir. 2006)....................................................................................... 17
Town of Chester v. Laroe Ests.,
581 U.S. 433 (2017) ....................................................................................................... 3
Statutes
2022 Ariz. Laws ch. 99 (H.B. 2492) ................................................................................. 4
28 U.S.C. §1254 ................................................................................................................. 3
28 U.S.C. §1651 ................................................................................................................. 3
52 U.S.C. §20501 ......................................................................................................... 4, 13
52 U.S.C. §20503 ............................................................................................................. 12
Ariz. Rev. Stat. §12-1841 ............................................................................................ 3, 15
Ariz. Rev. Stat. §16-121.01(C)........................................................................ 1, 2, 5, 8, 13
Ariz. Rev. Stat. §16-127 ................................................................................................ 2, 5
Ariz. Rev. Stat. §16-166 .................................................................................................... 4
Other Authorities
Ariz. Att’y. Gen. Op. I13-011............................................................................................ 4
State of Arizona, Rules of the Ariz. House of Representatives,
56th Legislature 2023-2024, Rule 4(K), perma.cc/GE39-MCFA............................. 17
State of Arizona, Senate Rules,
56th Legislature 2023-2024, Rule 2(N), perma.cc/JKK6-QQYM ............................ 17
Constitutional Provisions
Ariz. Const. art. VII, §12 .......................................................................................... 10, 16
U.S. Const. art. I, §4 ......................................................................................... 2, 9, 15, 16
U.S. Const. art. II, §1 ................................................................................................ 13, 16- iv -

TO THE HONORABLE ELENA KAGAN, ASSOCIATE JUSTICE OF THE SUPREME COURT
OF THE UNITED STATES AND CIRCUIT JUSTICE FOR THE NINTH CIRCUIT:
This Court has repeatedly instructed that the Purcell principle bars federal
courts from enjoining the enforcement of state election laws with an election
impending. The principle recognizes the important interests state officials have inprotecting their elections and avoiding voter confusion. See DNC v. Wis. State
Legislature, 141 S. Ct. 28, 29 (2020) (Gorsuch, J., concurral); id. at 31 (Kavanaugh,J., concurral). But the Ninth Circuit turned this principle against the enforcement ofstate election-integrity laws. Reading the Purcell principle as a general interest in
the status quo—including a status quo where a district court has enjoined stateelection law—a divided panel overturned a stay unanimously granted by another
Ninth Circuit panel just days before. The majority revived a district court injunction
against enforcement of an Arizona law requiring registrants using Arizona’s state
form to provide documentary proof of citizenship. See Ariz. Rev. Stat. §16-121.01(C).
But Purcell mandates that “when a lower court intervenes and alters the election
rules” with an erroneous order, an appellate court must “correct that error,” even if
it “would prefer not to do so.” RNC v. DNC, 589 U.S. 423, 425 (2020) (per curiam).
As Judge Bumatay noted in dissent, the panel majority’s reversal of anotherpanel faced with identical arguments days earlier “abandon[ed] regularity.” App. 20.
It also led to the peculiar result that “two judges prevail[ed]” over four who had voted
to partially stay the district court’s order. App. 21. The four judges who voted for thepartial stay were correct. The panel majority found that Arizona’s registration law
could not be enforced because of a consent decree entered by a single executive officeyears before the Arizona Legislature enacted the law. See League of United Latin Am.
Citizens of Ariz. v. Reagan, Doc. 37, No. 2:17-cv-4102 (D. Ariz. Jun. 18, 2018) (the“LULAC Consent Decree”). But the panel majority ignored the established rule thata consent decree generally yields to a change in the law, including a change instatutory law. That rule is especially important on questions of election
administration, which the Constitution expressly entrusts to state legislatures. See
U.S. Const. art. I, §4.
The Ninth Circuit also refused to stay the district court’s injunction against
the enforcement of Arizona laws that prohibit voters who have not provided
documentary proof of citizenship from casting ballots for president or by mail. See
Ariz. Rev. Stat. §§16-121.01(E), 16-127(A).
The district court’s injunction is an unprecedented abrogation of the Arizona
Legislature’s sovereign authority to determine the qualifications of voters andstructure participation in its elections.
Applicants need prompt relief. Because counties need to print ballots well inadvance of the election, the Secretary of State “has advised that the deadline toresolve” ballot-referendum litigation is August 22, 2024. App. 199 (Arizona Supreme
Court scheduling order in case challenging ballot referendum); App. 202-12(complaint in ballot-referendum challenge). This emergency application also concerns
the form and printing deadline of ballots: to implement its prohibition on voting inpresidential elections by individuals who have not provided documentary proof of
citizenship, Arizona must either not print the presidential candidates on federal only-2-

ballots, or configure its tabulation machines not to count presidential votes on federal
only ballots. Accordingly, Applicants request an immediate stay of the district
court’s injunction to the extent it requires Arizona to (1) accept state-form
voter registration applications lacking documentary proof of citizenshipand (2) allow voters who have not provided documentary proof of
citizenship to cast ballots for president or by mail.
OPINIONS BELOW
The merits panel opinion has been designated for publication in the Federal
Reporter and is attached at App. 1. The motions panel opinion is unreported but isattached at App. 43. The district court’s final judgment and post-trial rulings areunpublished but attached at App. 191 and App. 47. The district court’s opinion withrespect to the parties’ cross-motions for partial summary judgment is published at
691 F. Supp. 3d 1077 (D. Ariz. 2023), and is attached at App. 156.
JURISDICTION
The Court has jurisdiction over this Application under 28 U.S.C. §§1254(1)and 1651(a). The Republican National Committee, President of the Arizona State
Senate Warren Petersen, and Speaker of the Arizona House of Representatives Ben
Toma intervened as defendants before the district court and have standing. See Townof Chester v. Laroe Ests., 581 U.S. 433, 439 (2017); RNC, 589 U.S. at 423; Berger v.
N.C. State Conf. of the NAACP, 597 U.S. 179, 191-95 (2022); Ariz. Rev. Stat. §121841(A) (authorizing the legislative leaders to defend state laws “[i]n any proceeding-3-

in which a state statute, ordinance, franchise or rule is alleged to beunconstitutional”).
CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVEDThis case involves Article I, Section 4 of the United States Constitution, Article
II, Section 1 of the United States Constitution, Sections 20501 and 20503 of Chapter
52 of the United States Code, and Sections 16-121.01 and 16-127 of the Arizona
Revised Statutes. All are reproduced in the Appendix beginning at App. 213.
STATEMENT
Since 2004, Arizona has required newly registered voters to provide
documentary proof of citizenship. See Ariz. Rev. Stat. §16-166(F). This Court heldthat the National Voter Registration Act (“NVRA”), 52 U.S.C. §§20501-20511,
preempted that requirement as applied to individuals using the federal form
promulgated by the Election Assistance Commission to register to vote in federal
elections. See Arizona v. Inter Tribal Council of Ariz., 570 U.S. 1 (2013). It added,
however, that “state-developed [registration] forms may require information theFederal Form does not.” Id. at 12. After Inter Tribal Council, Arizona has registeredfederal-form registrants who do not supply documentary proof of citizenship as“federal-only” voters, who are eligible to vote only in federal races. State-form
applicants must still provide documentary proof of citizenship. See Ariz. Att’y. Gen.
Op. I13-011.

-4-

In 2022, Arizona enacted several reforms to its voter-registration laws. See
2022 Ariz. Laws ch. 99 (H.B. 2492). Two aspects of this legislation are relevant here.1
First, Ariz. Rev. Stat. §16-121.01(C) requires elections officials to reject any stateform application that is not accompanied by documentary proof of citizenship. Second,
Ariz. Rev. Stat. §§16-121.01(E) and 16-127(A) provide that voters who have notprovided documentary proof of citizenship may not vote for president or by mail.
The United States and various private plaintiffs initiated litigation soon after
the legislation’s passage. Because the Secretary of State refused to implement therelevant provisions, however, the plaintiffs never sought or obtained preliminary
injunctive relief. The district court ruled on partial summary judgment motions in
September 2023, holding that the NVRA preempted the provisions relating topresidential electors and mail-in voting, and that Arizona must continue processing
non-compliant state form registrations in accordance with the LULAC Consent
Decree. App. 165-72. The RNC moved for a partial final judgment on those issues inearly October, but the district court did not enter an appealable injunction until May
2, 2024. App. 191.
Applicants sought an emergency stay of the injunction in the Ninth Circuit.
On July 18, 2024, a motions panel unanimously stayed the injunction to the extent it
prohibited enforcement of Ariz. Rev. Stat. §16-121.01(C), and expedited the appeal.

1 Other provisions of the same law and a related bill are the subject of ongoing proceedingsin the Ninth Circuit.

-5-

Several plaintiffs sought reconsideration. Their motion did not raise any new
merits arguments but repeated the argument that the LULAC Consent Decree barred
enforcement of Arizona’s new documentary-proof-of-citizenship requirement forstate-form registrants. To support their reconsideration motion, they pointed out that
the Maricopa County Recorder had begun enforcing the documentary-proof-ofcitizenship requirement for state-form registrants. They argued that thisenforcement of state election-integrity laws caused confusion, and that this violated
the Purcell principle.
After emergency briefing, a divided merits panel lifted the partial stay overJudge Bumatay’s dissent. It found that the LULAC Consent Decree requires county
recorders to accept state-form applications without documentary proof of citizenshipdespite Arizona’s new law. And it found that the original stay panel had caused a“manifest injustice” by failing to apply Purcell to continue to enjoin enforcement of
Arizona’s law. App. 17-18.
Judge Bumatay first noted that it was unusual for a motion for reconsideration
to succeed with no new facts or law, noting that “two judges prevail[ed]” over four“because of the luck of an internal Ninth Circuit draw.” App. 21. He explained thatallowing a consent decree to prevail over later statutory enactments raised serious
separation-of-powers concerns, and that consent decrees ordinarily must yield tochanges in law, including statutory law. App. 26-30. He also noted that Purcell was
not a tool to uphold injunctions barring the enforcement of state law. App. 40-41.

-6-Litigation affecting what will be printed on Arizona’s ballot must be resolved
by August 22, 2024, hence necessitating relief no later than that date. App. 199.
REASONS FOR GRANTING THE APPLICATIONThis Court will grant a stay of a district court’s order, including in a case still
pending before the court of appeals, if there is “(1) a reasonable probability that four
Justices will consider the issue sufficiently meritorious to grant certiorari; (2) a fairprospect that a majority of the Court will vote to reverse the judgment below; and (3)a likelihood that irreparable harm will result from the denial of a stay.”
Hollingsworth v. Perry, 558 U.S. 183, 190 (2010) (per curiam). Applicants havesatisfied these standards here.
I.

There Is A Reasonable Probability That Four Justices Would Vote To
Grant Review And A Fair Prospect That This Court Would Reverse.
A.

The LULAC Consent Decree Cannot Prohibit The Arizona
Legislature From Enacting Enforceable Statutes Governing
Voter Registration

This Court’s prior orders granting stays of injunctions that change stateelection laws as an election approaches only confirm that the Court’s immediate
intervention is necessary here. See, e.g., North Carolina v. League of Women Votersof N.C., 574 U.S. 927 (2014) (this Court, 27 days before Election Day, stayed a lower
court order changing election laws 32 days before Election Day); Husted v. Ohio State
Conf. of N.A.A.C.P., 573 U.S. 988 (2014) (this Court, 36 days before Election Day,
stayed a lower court order changing election laws 61 days before Election Day);
Purcell v. Gonzalez, 549 U.S. 1, 4-5 (2006) (per curiam) (this Court, 18 days before-7-Election Day, stayed a lower court order changing election laws 33 days before
Election Day). This practice recognizes the State’s interest in protecting its elections
and avoiding voter confusion on the eve of an election. “The Constitution provides
that state legislatures—not federal judges, not state judges, not state governors, notother state officials—bear primary responsibility for setting election rules.” Wis. State
Legislature, 141 S. Ct. at 29 (Gorsuch, J., concurral); see also id. at 31 (Kavanaugh,J., concurral) (“It is one thing for state legislatures to alter their own election rules in
the late innings and to bear the responsibility for any unintended consequences. It isquite another thing for a federal district court to swoop in and alter carefully
considered and democratically enacted state election rules when an election isimminent.”). So “when a lower court intervenes and alters the election rules” with anerroneous order, an appellate court must “correct that error,” even if it “would prefer
not to do so.” RNC, 589 U.S. at 425. The Ninth Circuit turned this shield for statelaws into a sword to impose a judicially mandated status quo. And this Court is likely
to review the Ninth Circuit’s disruptive displacement of election rules enacted by the
Arizona Legislature in 2022.
The Ninth Circuit did so based on its erroneous conclusion that a state
executive branch official can bargain away to private litigants the legislative branch’s
constitutional authority to regulate elections. In 2018, the then–Secretary of State
executed the LULAC Consent Decree, which provided that if an applicant submits astate form without documentary proof of citizenship, she will be registered as a fullballot voter if her citizenship can be confirmed using information on file with the-8-

Arizona Department of Transportation. If her citizenship cannot be verified, she will
be registered as a federal-only voter. App. 48-49. In 2022, the Arizona Legislature
exercised its authority under Article I, Section 4 of the U.S. Constitution, and its
sovereign powers under the Arizona Constitution, to instead mandate that state
forms lacking documentary proof of citizenship must be rejected. See Ariz. Rev. Stat.
§16-121.01(C).
The Ninth Circuit’s holding that the LULAC Consent Decree preemptively
denuded the Arizona Legislature’s enactment of binding effect “presents significant
separation-of-powers concerns.” App. 27. It would mean that a judgment enteredunilaterally by an executive branch officer indefinitely displaced the Legislature’s
power. In other words, it would effectively empower “the executive branch [to]circumvent legislative authority.” App. 27. Such a judicially imposed distortion of aState’s chosen allocation of sovereign authority would “bind state and local officials
to the policy preferences of their predecessors and may thereby improperly deprive
future officials of their designated legislative and executive powers.” Horne v. Flores,
557 U.S. 433, 449 (2009) (cleaned up). And in cases such as this one, where different
state actors have different views, it would present serious practical risks. An
executive officer would be “sorely tempted” to agree to terms that dictate its view ofa policy disagreement. App. 27. “Precisely because different state actors have taken
contrary positions in this litigation, federalism concerns are elevated.” Horne, 557
U.S. at 452.

-9-

This invocation of the LULAC Consent Decree to displace legislative power is
especially serious on issues of election administration. As the dissent emphasized,“State legislatures have express constitutional authority to act” on questions ofelection administration. App. 28 (citing U.S. Const. art. I, §4). The Arizona
Constitution likewise charges the Legislature with “enact[ing] registration and otherlaws to secure the purity of elections and guard against abuses of the elective
franchise.” Ariz. Const. art. VII, §12. The notion that an executive branch officer canindefinitely abrogate these core constitutional powers is “alarming.” App. 28.
The Court is likely to reverse the district court’s displacement of the Arizona
Legislature’s authority. In observing that “legislative acts must predominate overconsent decrees, not the other way around,” App. 28, Judge Bumatay channeled thisCourt’s precedents. When a legislative body “changes the law underlying a judgmentawarding prospective relief, that relief is no longer enforceable to the extent it isinconsistent with the new law.” Miller v. French, 530 U.S. 327, 347 (2000); see also
Agostini v. Felton, 521 U.S. 203, 215 (1997) (“A court errs when it refuses to modify
an injunction or consent decree in light of [legal] changes.”). After all, the Ninth
Circuit’s alternative approach would allow a single executive officer to “handcuff
governments in perpetuity.” App. 28. And it ignores the general rule that “consent
decrees may need to give way to intervening changes in law, including legislative
enactments.” App. 28; see also Rufo v. Inmates of Suffolk 10 Cnty. Jail, 502 U.S. 367,
388 (1992) (A consent decree may need to be modified “when the statutory or
decisional law has changed to make legal what the decree was designed to prevent.”).
- 10 -

The majority’s protestation that “a state legislature may [not] nullify a final
judgment entered by an Article III court,” App. 11, misses the point. While legislative
bodies cannot alter a judgment, their enactment “alter[s] the prospective effect of
injunctions entered by Article III courts.” Plaut v. Spendthrift Farm, Inc., 514 U.S.
211, 232 (1995); see also Rufo, 502 U.S. at 379-80 (A “consent [decree] is to be read as
directed toward events as they then were. It was not an abandonment of the right toexact revision in the future, if revision should become necessary in adaptation to
events to be.” (cleaned up)); Biodiversity Assocs. v. Cables, 357 F.3d 1152, 1169-70(10th Cir. 2004) (A consent decree “does not freeze the provisions of the statute into
place. If the statute changes, the parties’ rights change, and enforcement of theiragreement must also change. Any other conclusion would allow the parties, byexchange of consideration, to bind not only themselves but Congress and the courts
as well.”). Thus, if the Arizona Legislature had rescinded voter registrations accepted
under the LULAC Consent Decree, it may well have evoked the constitutional
concerns that preoccupied the Ninth Circuit. See Plaut, 514 U.S. at 219 (legislatures
cannot “retroactively command[] the federal courts to reopen final judgments”). But
its enactment of new rules for state-form registrants going forward did not.
B.

The NVRA Cannot Preempt Arizona’s Qualifications to Vote for
Presidential Electors and Does Not Preempt Arizona’s Mail-In
Voting Laws

This case presents two additional, important election-integrity issues that
there is reasonable probability this Court would review. A State “has a compellinginterest in preserving the integrity of its election process.” Purcell, 549 U.S. at 4
- 11 -

(quoting Eu v. S.F. Cnty. Democratic Central Comm., 489 U.S. 214, 231 (1989)). It
has a strong “interest in accurate voter lists.” Marston v. Lewis, 410 U.S. 679, 681(1973). Allowing an unqualified person to register and vote harms the “right tosuffrage” of qualified voters “by debasement [and] dilution,” and it undermines the“[c]onfidence in the integrity of our electoral processes” that “is essential to thefunctioning of our participatory democracy.” Purcell, 549 U.S. at 4. For this reason,
this Court has reviewed decisions presenting novel and important questions about aState’s ability to secure its elections. See Husted v. A. Philip Randolph Inst., 584 U.S.
756 (2018) (reviewing challenge to Ohio’s system for maintaining voter rolls); Inter
Tribal Council, 570 U.S. at 20 (reviewing Arizona’s requirement for Federal Formregistrants to provide proof of citizenship).
This case raises similarly important and novel questions about Arizona’s
ability to protect its elections. Arizona law permits only those applicants who canprovide documentary proof of citizenship to vote by mail. This restriction protects
Arizona’s elections by extending “mail-in voting”—where “[f]raud is a real risk”—toapplicants who can provide documents to show that they are qualified citizens.
Brnovich v. DNC, 594 U.S. 647, 686 (2021). The district court found that thisrequirement violated the NVRA, even though that statute addresses “procedures toregister to vote in elections.” 52 U.S.C. §20503(a). There is a reasonable probability
that this Court will review this holding because it expands a statute focused on voter
registration to require Arizona to expand mail-in voting.

- 12 -

There is also a more-than-fair prospect that this Court will reverse. To begin,
the district court applied the NVRA—a law governing voter registration—to prohibit
Arizona’s requirement that only registrants who provide documentary proof of
citizenship can vote by mail. App. 167-70. Neither the district court nor any party hasreconciled this preemption of a state mail-voting rule by a statute that addresses“procedures to register to vote in elections.” 52 U.S.C. §20503(a) (emphasis added).
Instead, they have primarily argued that this application is consistent with the
NVRA’s purpose of increasing registered voters, App. 168-69, while ignoring that the
NVRA is also designed “to protect the integrity of the electoral process,” 52 U.S.C.
§20501(b)(3). And the district court’s holding created a ban on state limits on mailvoting based on a federal statutory provision clarifying that most first-time voters
can be required to vote in person even though they can register by mail. App. 167-70.
But “this Court has repeatedly stated” that “the text of a law controls over purported
legislative intentions unmoored from any statutory text.” Corner Post, Inc. v. Bd. ofGovernors of Fed. Rsrv. Sys., 144 S. Ct. 2440, 2454 (2024). Nothing in the NVRA’s
requirement to accept registrants using the Federal Form suggests that States must
extend mail-in voting to registrants without proof of citizenship.
The district court also read the NVRA to reach state rules governing themanner of selecting presidential electors. Arizona permits registrants using theFederal Form without proof of citizenship to vote in federal congressional elections,but not in state or presidential elections. See Ariz. Rev. Stat. §16-121.01. Thisapproach reflects the Constitution’s limit on congressional authority over presidential- 13 -

elections; Congress can decide only “the Time of chusing Electors, and the Day on
which they shall give their Votes.” U.S. Const. art. II, §1. That authority does not
permit Congress to displace state rules for registering to vote in presidential
elections.
The district court ignored those textual limits because it thought that thisCourt’s decisions had expanded Congress’s power. App. 164-67. But no decision of thisCourt has given Congress the power to displace state rules for registering and voting
in presidential elections. Burroughs v. United States merely confirmed that an
application of the Federal Corrupt Practices Act to political committees trying to
influence the selection of presidential electors complies with the constitutional
allocation of authority. 290 US. 534, 544-48 (1934). The FCPA did not “interfere withthe power of a state to appoint electors or the manner in which their appointment
shall be made”—a contention that can’t be made about the district court’s applicationof the NVRA. Id. at 544. And Buckley v. Valeo upheld a system of public financing as
an exercise of Congress’s spending power—a power not relevant to the NVRA. 424
U.S. 1, 90-91 (1976) (per curiam). Neither case can be read to displace Arizona’s
constitutional power to regulate its state process for registering to vote forpresidential electors.
II.

Applicants Will Suffer Irreparable Harm Absent A Stay
An “injunction[] barring the State from conducting this year’s elections

pursuant to a statute enacted by the Legislature … would seriously and irreparably
harm the State,” if the statute is ultimately determined to be valid. Abbott v. Perez,- 14 -

585 U.S. 579, 602 (2018) (footnote omitted); see also Maryland v. King, 567 U.S. 1301,
1303 (2012) (Roberts, C.J., in chambers) (“[A]ny time a State is enjoined by a court
from effectuating statutes enacted by representatives of its people, it suffers a formof irreparable injury.” (citation omitted)). That harm is especially acute on questionsof election administration. The “State indisputably has a compelling interest inpreserving the integrity of its election process.” Eu, 489 U.S. at 231. The harm is evenmore severe because the Ninth Circuit intervened to displace a State’s electionintegrity measures with an election impending. See Purcell, 549 U.S. at 5.
A. The Ninth Circuit sidestepped these sovereign interests by pointing out that
other state officers, including the Attorney General, opposed a stay. App. 14-15. But
it is the Legislature who has authority to enact rules to secure Arizona’s elections.
See U.S. Const. art. I, §4. And Arizona has “empower[ed] multiple officials,” including
the Speaker of the House and the Senate President, “to defend its sovereign interests
in federal court.” Cameron v. EMW Women’s Surgical Ctr., P.S.C., 595 U.S. 267, 277(2022). In particular, Arizona law authorizes the legislative leaders to “intervene,”“file briefs,” and otherwise “be heard” in “any proceeding in which a state statute …
is alleged to be unconstitutional.” Ariz. Rev. Stat. §12-1841 (emphasis added); see also
Isaacson v. Mayes, 2023 WL 2403519, at *2 (D. Ariz. Mar. 8, 2023) (recognizing thestatute’s applicability in federal court, noting that “[a]ny means any”). Thus, theLegislature “has also reserved to itself some authority to defend state law on behalfof the State” and protect against harms to the State’s sovereign interest. Berger, 597
U.S. at 194; see also App. 39 (recognizing that “Arizona law grants the Legislative- 15 -

Leaders

authoritytocontestan

injunctionsuspendingtheLegislature’s

enactments”). The Speaker and Senate President accordingly have standing to defend
Arizona’s election laws against the irreparable harm to the State that ensues fromthe district court’s injunction. See Abbott, 585 U.S. at 602.
The improper injunction also harms the Arizona Legislature as an institution
because it constitutes an extrinsic constraint on the Legislature’s lawmaking
functions. See Ariz. State Legislature v. Ariz. Indep. Redistricting Comm’n, 576 U.S.
787, 800 (2015) (Arizona Legislature had standing to bring claim that initiative
measure “strips the Legislature of its alleged prerogative to initiate redistricting”);
Forty-Seventh Legislature v. Napolitano, 143 P.3d 1023, 1028 (Ariz. 2006). The
injunction thwarts the Legislature from disallowing individuals who have not proved
their U.S. citizenship from participating in Arizona’s selection of its presidential
electors or from using Arizona’s generous mail-in voting option. It also elevates the
Secretary of State’s improvident promises in the LULAC Consent Decree over theState’s democratically enacted laws.
In doing so, the injunction abrogates the Arizona Legislature’s constitutional
power to prescribe qualifications to vote for presidential electors, see U.S. Const. art.
II, §1; to presumptively determine the “manner” of voting in federal elections, see id.
art. I, §4; and to safeguard the purity of all elections in Arizona, see Ariz. Const. art.
VII, §12; Priorities USA v. Nessel, 978 F.3d 976, 982 (6th Cir. 2020) (explaining that,when an election law is enjoined, “[t]he legislature has lost the ability to regulate thatelection in a particular way”). Thus the Legislature itself has sustained an injury- 16 -

because its “specific powers are disrupted” by the injunction. Id.; see also Ariz. State
Legislature, 576 U.S. at 803 (institutional injury occurs when a legal impediment
would nullify “any vote by the Legislature, now or ‘in the future,’” by which
Legislature exercises a constitutional power). And legislative leadership may seek
redress of this harm on the institution’s behalf, as both chambers have adopted rules
empowering their presiding officers to “bring or assert in any forum on behalf of the[irhouses] any claim or right arising out of any injury to [their houses’] powers or duties
under the Constitution or Laws of this state.” State of Arizona, Senate Rules, 56th
Legislature 2023-2024, Rule 2(N), perma.cc/JKK6-QQYM; State of Arizona, Rules of
the Ariz. House of Representatives, 56th Legislature 2023-2024, Rule 4(K),perma.cc/GE39-MCFA; see also Ariz. State Legislature, 576 U.S. at 802 (noting thesignificance of “authorizing votes in both of its chambers”).
B. The district court’s judgment will also irreparably harm the RNC. The RNC
has an interest in having its members’ rights as voters not undermined by eleventhhour changes to election laws. In addition, “[v]oluminous” authority in the circuit
courts agrees that candidates and parties suffer injury when their “chances of victorywould be reduced.” Tex. Democratic Party v. Benkiser, 459 F.3d 582, 587 & n.4 (5thCir. 2006) (collecting cases). According to the Plaintiffs’ own expert, only 14.3% ofFederal Only voters are registered as members of the Republican Party, while
Republicans comprise 34.5% of the total active registered voter population in Arizona.
App. 197. And because elections, like admissions, “are zero-sum,” a “benefit provided
to [one] but not to others necessarily advantages the former … at the expense of the- 17 -

latter.” Students for Fair Admissions, Inc. v. President & Fellows of Harvard Coll.,
600 U.S. 181, 218-29 (2023). The district court’s order requires including individuals
in the presidential electorate who have failed to satisfy the minimum state-law
requirements to confirm their identity and citizenship. That “‘illegally structure[d]competitive environment’” harms the RNC. Mecinas v. Hobbs, 30 F.4th 890, 898 (9thCir. 2022).
C. A stay would not inflict any countervailing harms on the plaintiffs or the
public interest. The district court found no evidence that Arizona’s documentary proofof citizenship requirement “will in fact impede any qualified voter from registering tovote or staying on the voter rolls.” App. 138. It further concluded that the challenged
laws “do not impose an excessive burden on any specific subgroup of voters.” App.
141.
The Ninth Circuit relied heavily on the Purcell principle to reverse an order
allowing state officials to enforce state law. Its reasoning, however, “backs into selfcontradiction.” App. 41. The Purcell principle protects state election-integrity
measures from last-minute interference. See Wis. State Legislature, 141 S. Ct. at 31(Kavanaugh, J., concurral) (“It is one thing for state legislatures to alter their own
election rules in the late innings and to bear the responsibility for any unintended
consequences. It is quite another thing for a federal district court to swoop in andalter carefully considered and democratically enacted state election rules when an
election is imminent.”). The Arizona Legislature enacted the relevant statutes morethan two years ago. But the Ninth Circuit order stopped state officials from enforcing- 18 -

the law. Since the Ninth Circuit erroneously enjoined a valid state election statute,
this Court “should correct that error.” RNC, 589 U.S. at 425; see also Merrill v.
Milligan, 142 S. Ct. 879, 882 n.3 (2022) (Kavanaugh, J., concurral) (“Correcting anerroneous lower court injunction of a state election law does not itself constitute a
Purcell problem.”). As the dissent observed, a stay “would just return to the status
quo before the district court’s injunction.” App. 41.
Worse yet, the panel majority’s Purcell errors compound its misconstruction of
Arizona law. Specifically, the majority relied heavily on the incorporation of the
LULAC Consent Decree’s terms in the Secretary’s 2023 Elections Procedures Manual(“EPM”), a compendium of binding regulations. See App. 16-17. But the dissent
rightly pointed out that the Secretary has stipulated in other proceedings that theEPM merely summarizes court rulings in effect at the time of its issuance; it does notinfuse into them any independent legal force. See App. 25. More fundamentally, “anEPM regulation that contradicts statutory requirements does not have the force oflaw.” Leibsohn v. Hobbs, 517 P.3d 45, 51 (Ariz. 2022). In other words, the EPM could
never, as a matter of state law, furnish a colorable excuse for disregarding anotherwise valid statute.
CONCLUSION
This Court should issue the requested stay before August 22, 2024.

- 19 -

Respectfully submitted,
TYLER GREEN
Consovoy McCarthy, PLLC
222 Main St., 5th Floor
Salt Lake City, UT 84101
GILBERT C. DICKEYCONOR D. WOODFIN
Consovoy McCarthy, PLLC
1600 Wilson Blvd, Ste. 700
Arlington, VA 22209(703) 243-9423
Counsel for Republican National
Committee

KORY LANGHOFER
Counsel of Record
Statecraft PLLC
649 North Fourth Avenue
1st Floor
Phoenix, AZ 85003(602) 382-4078
kory@statecraftlaw.com
Counsel for Republican National
Committee, Warren Petersen, and Ben
Toma
August 8, 2024

- 20 -