One day before Arizona’s primary election, the U.S. 10th Circuit Court of Appeals in Denver heard arguments Monday on the constitutionality of voters having to prove citizenship through a passport or birth certificate before they can register to vote. Arizona and Kansas have both passed laws requiring voters to prove citizenship before they can register. That is stricter than federal law, which requires a voter simply to affirm U.S. citizenship in writing. On Tuesday, Arizona voters who have not proved their citizenship to the state’s satisfaction will be able to cast ballots only for U.S. Congress — not for governor or any other state offices. Kansas held such a two-tier primary earlier this month. “The Founding Fathers didn’t want that,” said Kansas Atty. Gen. Kris Kobach, who argued the case for both states. “They are using the federal form as a lever to displace the state’s power,” he said in an interview after the hearing. Supporters contend such laws prevent voter fraud. Opponents maintain that the real motivation is to make it more difficult for minorities and the poor to vote.
The case hinges on “a narrow but important issue,” said Dan Tokaji, an Ohio State University expert on election law and voting rights. “It’s important because if Arizona and Kansas win, we could see a lot more states trying to make it more difficult to register.”
Manipulating voter registration has an unsavory history, Tokaji said. “If you look at the history of voting rights in this country, registration has often been used and manipulated … to prevent certain groups of people from voting, most notoriously blacks in the South before the  Voting Rights Act,” he said.
But Richard Hasen, a professor of law and political science at UC Irvine, calls noncitizen voting “not a phantom problem,” as Democrats often describe it. “But the number of noncitizens registered and voting is small…. The question is, how large a problem is it, and is it worth taking the risk of disenfranchising voters” who can’t easily prove citizenship.