Attorney General Tom Horne says he suspects the few voters who didn’t prove their citizenship when they registered with federal forms are in the U.S. illegally.
Election officials beg to differ.
Either way, the state is going to use dual voter lists, one for those who registered with state forms and showed their required proof of citizenship, and one for those who registered with federal forms and simply marked a box swearing they are citizens.
Voters who registered with state forms will be able to vote in state, federal, and other local elections, while those using the federal form will only be able to vote in federal elections and won’t be allowed to sign candidate petitions.
It is a policy supported by an attorney general legal opinion that is going to bring headaches to elections officials and benefit Horne and Secretary of State Ken Bennett politically, both of whom are likely to have stiff primary competition in their respective runs for attorney general and governor.
“It’s probably good politics for Horne because he has a tough primary coming up where things like voter fraud and immigration issues play well,” said Kory Langhofer, an elections attorney who was litigation counsel for the Mitt Romney presidential campaign. “It is almost certainly bad politics for the party.”
Langhofer said voter identification laws generate a media narrative that says Republicans are trying to suppress the vote of minorities.
“I don’t know if that is the fair narrative, but that’s definitely the narrative that has taken hold and all the news stories read along those lines,” Langhofer said.
Horne says he suspects that everyone who uses the federal form is a non-citizen trying to get away with voter fraud.
“Why else would they want the federal form,” Horne asked.
Trying to strike a balance
The new dual list policy came in response to a June 17 U.S. Supreme Court ruling that held the state cannot dictate proof of citizenship for someone who submits the federal registration form, paperwork the state must “accept and use.” Arizona can still require the proof when a prospective voter registers with the state form.
The Supreme Court case stemmed from Proposition 200, a 2004 ballot measure requiring prospective voters to provide concrete proof of citizenship, even when using the federal registration 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. The legal case is pending.
Meanwhile, Horne issued his opinion after Bennett asked if applicants who use the federal forms can vote in state and local elections.
Bennett spokesman Matt Roberts said the secretary of state is trying to strike a balance.
“The court has ordered us to do one thing, the voters have required us to do something else, so we’ve got two sets of competing issues and the opinion allows us to address both,” Roberts said.
No hard evidence
Horne said he really has no hard evidence that people who use the federal forms are illegal immigrants except for reports he has received that many people are registered to vote who report on jury questionnaires they are non-citizens.
Maricopa County Elections Director Karen Osborne said that has happened maybe a few hundred times over four or five years.
“I’ll tell you what usually it is, somebody wants to get out of jury duty and they put down they are a non-citizen,” Osborne said.
Osborne said she cancels the voter registration and sends the person a copy of the cancellation and their jury questionnaire.
“They’ll call and say, ‘Oh, no, no, no I’m a citizen, my family settled the Valley, I just didn’t want to go to jury duty,’” Osborne said.
She said she also turns the information over to the Maricopa County Attorney’s Office because the person either lied under oath on the jury questionnaire or lied on the voter registration.
Jerry Cobb, spokesman for the Maricopa County Attorney’s Office, said he checked records back to 2010 but found no one prosecuted for false registration.
Coconino County Recorder Patty Hansen said in the 10 years in her job she has never seen anyone who claimed to be a non-citizen and were registered to vote.
Hansen said there are 121 voters who registered with the federal form, most of them students at Northern Arizona University.
She said students from out-of-state tend not to have Arizona identification and they typically don’t bring their birth certificates with them to college.
High costs of separate rolls
Osborne 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.
Maricopa County receives about 250,000 voter registration forms a year.
Hansen said she is concerned voters will be confused by the new policy and she intends to wage a public information campaign to get the word out.
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 Supreme Court case that said the state can’t require the proof of citizenship with the federal forms.
“I cannot imagine that we will allow this to go into effect without some sort of legal challenge,” Gallardo said.
Langhofer said there is a case to be made either way.
“As far as I know there is no precedent that prohibits what Tom Horne is doing. There’s also not a precedent saying, ‘This is fine — he can require everyone to do something other than the federal form,’” Langhofer said. “This is the sort of case you would expect to be appealed and furiously fought on appeal because that’s where the decision is really going to be made.”