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Legal action likely over opinion creating two classes of voters


Arizona Attorney General Tom Horne attends the official election canvass approval signing at the Historic Senate Chambers at the Capitol, Monday Dec. 3, 2012, in Phoenix. Horne is being investigated by the State Bar over allegations stemming from an investigation into alleged campaign finance violations. (AP Photo/Ross D. Franklin)

Arizona Attorney General Tom Horne. (AP Photo/Ross D. Franklin)

Arizona’s new policy of having separate voter rolls for people who didn’t provide proof of citizenship when registering is likely to stir up a lawsuit before the 2014 elections.

In a written opinion, Attorney General Tom Horne told Secretary of State Ken Bennett Monday that voters who registered with federal forms and didn’t provide proof of citizenship won’t be allowed to vote in local and state elections or sign petitions.  But they can still vote in federal elections.

Bennett spokesman Matt Roberts said it is “highly probable” a lawsuit will be filed to challenge the policy.  That opinion is shared by Sen. Steve Gallardo, D-Phoenix, one of the many plaintiffs in Arizona v. Inter Tribal Council of Arizona.  The June U.S. Supreme Court opinion held that the state cannot dictate proof of citizenship for someone who submits the federal registration form. Arizona can still require the proof when a prospective voter registers with the state form.

“I cannot imagine that we will allow this to go into effect without some sort of legal challenge,” Gallardo said.

Roberts said the Secretary of State’s Office has been working with county election offices in anticipation of Horne’s opinion.

Karen Osborne, Maricopa County Elections director, said primary elections are going to be the most burdensome because they are going to require an additional separate ballot for each political party in the federal races.

Osborne said it will cost about an extra $250,000 in Maricopa County to provide for the separate voter rolls in 2014.

There are about 900 voters on the rolls who utilized the federal form to register and did not provide proof of citizenship, Osborne said.

“If you’re disenfranchising one voter, that’s one too many,” Gallardo said.

Maricopa County receives about 250,000 voter registration forms a year and has processed roughly 12,000 federal registration forms since July 2012. Most of them were for modifications such as change of address.

Arizona overwhelmingly passed Proposition 200 in 2004 requiring prospective voters to provide concrete proof of citizenship, even on federal registration forms, which only require an affirmation under penalty of perjury.

The U.S. Supreme Court held that Arizona cannot require the proof of citizenship for someone who submits the federal form. States are required by federal election law to “accept and use” the federal forms.

Supreme Court Justice Antonin Scalia wrote the 7-2 opinion and suggested Arizona could ask the Elections Assistance Commission to place Arizona’s proof of citizenship requirement on the federal form and sue if the panel refused.

Horne and Bennett on Aug. 21 joined Kansas Secretary of State Kris Kobach in suing the commission, which has no sitting members, after the panel’s executive director, Alice Miller, refused the request.

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