PHOENIX (CN) - An Arizona voter registration law upheld by the Ninth Circuit last year returned to the federal appeals court Wednesday for an en banc rehearing, in which 11 judges reconsidered whether a voter outreach organization has standing to challenge a law requiring cancellation of some voter registrations. 

Passed in 2022, Senate Bill 1260 requires county recorders to cancel the registration of anyone registered to vote in a different county, and prosecute with felony charges election officials who register a voter already registered in another state. 

Because a voter could register in a new county or state before their old registration is removed from the database, nonprofits Alliance for Retired Americans and Voto Latino say the law would result in improper cancellations and prosecutions that would chill voter engagement and undermine the organizations' voter registration efforts.

The nonprofits sued the governor, attorney general and each of Arizona's 15 county recorders in August 2022.

In November, a Ninth Circuit panel reversed a preliminary injunction on the law, which has been frozen since only a day after it was enacted. The three judges found that the plaintiffs have no standing to challenge the cancellation provision for lack of actual injury, and that they'd lose on the merits in regard to the felony provision.

Wednesday afternoon in a federal courthouse in Seattle, 11 circuit judges including Chief U.S. Circuit Judge Mary Murguia reconsidered each party's arguments. 

Representing the Department of Justice, which joined the defendants via amicus curiae, attorney Sean Janda asked the judges to remember their initial finding that increasing voter registration efforts cannot constitute actual harm.

"No plaintiff can generate injury where none previously existed by choosing to expend resources in response to a defendant's conduct," Janda said. 

While the plaintiffs argue that the law will increase the number of improperly canceled voter registrations, requiring them to increase efforts to re-register those voters, Janda argued that the injury would be to the voters themselves, not a nonprofit increasing voluntary spending in response to that injury.

"If there is no injury in the first place, you cannot spend your way to standing," he said.

The judges panel compared the case to FDA v Alliance for Hippocratic Medicine, in which the Supreme Court ruled unanimously that anti-abortion groups lack standing to sue the Federal Drug Administration for approving abortion pills. In the decision, the justices wrote that the groups' impaired ability to provide services "does not work to demonstrate standing."

Representing the Alliance for Retired Americans, attorney Aria Branch said that precedent doesn't apply here because the "services" referenced in the FDA case related to lobbying and voter education, not actual engagement services that are undermined by reckless registration cancellations. 

Janda countered that a party isn't injured just because they offer a service related to a law, in the way that an attorney doesn't have standing to sue over every written law just because they represent people who comply with those laws. 

While fighting to keep the law on the books, Arizona Attorney General Kris Mayes has disavowed enforcement of the felony provision against election officials who double register voters, though that disavowal doesn't legally prevent county prosecutors from enforcing the law. 

The plaintiffs challenge a line in statute that calls to prosecute anyone found to "provide a mechanism for voting to another person who is registered in another state." They say "provide a mechanism for voting" could apply to their organizations teaching and helping people register. 

In its 2024 opinion, the Ninth Circuit panel found that the statute doesn't apply to third party outreach.

Tracy Olsen, representing intervenor Yuma County Republican Committee, said the line clearly implies the act of registering a voter when read within the entire statute, and therefore isn't unconstitutionally vague. 

It's unclear when the 11 judges will rule. 

Generally, an en banc hearing in the U.S. Court of Appeals is heard by all sitting members of the court, but because of the Ninth Circuit's high number of judges, only the chief judge and a random selection of 10 others presided over Wednesday's hearing.

Source: Courthouse News Service