The Supreme Court rejected a plea from Arizona Senate President Warren Petersen and House Speaker Ben Toma, who said legislative privilege protects them from being deposed in a lawsuit challenging state election laws. Courts have said Toma and Petersen waived that right when they joined a lawsuit to defend the laws. (File photo by Celisse Jones/Cronkite News)
WASHINGTON – The Supreme Court on Monday denied a request from Republican legislative leaders who argued they cannot be forced to answer questions from voting rights groups challenging the 2022 passage of two Arizona election laws.
Arizona House Speaker Ben Toma and Senate President Warren Petersen said legislative privilege protects 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 refused, without comment, their request for an emergency stay.
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 the lawmakers should have to face questions on why they passed the laws.
“You know, coming from a Latino standpoint, I can guess as to what their intent is,” Guzman said 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 attorneys were not immediately returned Tuesday and it could not be determined if they have, in fact, been deposed.
Monday’s order is the latest turn in a challenge that began one day after the first two election law was signed into effect by then-Gov. Doug Ducey.
Eight separate challenges were filed by more than 20 plaintiffs, including the Justice Department, the national and state Democratic parties, Native American tribes, Hispanic, student and voting rights groups. They were consolidated into one case 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 their address before they can register to vote. If it is challenged, voters would have to go to a county recorder or the attorney general with proof of their citizenship.
HB 2243 requires a county recorder to cancel the registration of voters if the recorder receives and confirms information that the person is not a U.S. citizen, is not an Arizona resident or has been issued a driver’s license or nonoperating license in another state.
In signing HB 2492 into law in March 2022, Ducey said that more than 11,600 Arizona voters had failed to provide evidence of citizenship since the 2020 elections. 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 provide election integrity.
“Election integrity means counting every lawful vote and prohibiting any attempt to illegally cast a vote,” Ducey wrote. “H.B. 2492 is a balanced approach that honors Arizona’s history of making voting accessible without sacrificing security in our elections.”
Arizona Senate President Warren Petersen, shown here testifying in 2022, argued that he and House Speaker Ben Toma are protected from being deposed in a lawsuit challenging state election laws. But courts, including the U.S. Supreme Court, have rejected that argument. (File photo by Genesis Alvarado/Cronkite News)
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 on the reasoning for passage of the laws that they said “make it harder to register to vote, harder to stay registered, and harder to cast a ballot.”
Toma and Petersen said they turned over more than 90,000 pages of documents along with written answers to some of the plaintiffs’ questions. But they declined to answer other questions about motives behind the law, saying that it infringed legislative privilege, which protects lawmakers from being sued for “legitimate legislative activity.”
The plaintiffs said they respect the privilege, but that Toma and Petersen waived it when they got involved in the suit and argued that there was no malicious intent behind the laws. They could have joined the case as friends of the court, but chose otherwise 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 U.S. Circuit Court of Appeals eventually upheld that ruling on Nov. 17. The legislative leaders asked the Supreme Court to put the circuit court’s ruling on hold while they petitioned for a writ of mandamus – an order directing the lower courts to reverse a ruling.
The plaintiffs said the leaders’ petitions are little more than a delaying tactic in an effort to keep the laws in effect before the presidential primary set for March 2024.
Guzman, who is the state director of LULAC, said Toma and Petersen should be subject to discovery.
“Show us where this (the laws) came from, show us the intent, show us,” said Guzman. “I hope that with this discovery also comes looking 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.
“Legislators pass laws for inappropriate reasons,” Gulotta said in a statement. “The public deserves to know and the courts should consider those motives when trying to determine if those laws should be struck down.”