The state’s top two elected Republicans are siding with Democratic Secretary of State Adrian Fontes that nearly 100,000 Arizonans who haven’t provided proof of citizenship should be able to vote on all candidates – at least this year.

In new filings Sept. 18, at the Arizona Supreme Court, House Speaker Ben Toma and Senate President Warren Petersen acknowledge that a voter-approved law says those for whom there is no such evidence are not entitled to vote for candidates for state, legislative or local office, or for or against ballot measures. And they do not dispute the findings of Fontes that such proof is missing for the individuals at issue.

But attorney Thomas Basile said the error was not the fault of any of the voters at issue. In fact, he is telling the justices that they have been “affirmatively induced by government officials to believe they were qualified, full-ballot voters.”

Under normal circumstances, Basile said, the affected voters would be provided written notice of the missing documentation, instructions for resolving it, and a postage prepaid and pre-addressed envelope in which to submit it. And he said they would have 35 days to respond.

But Basile said that isn’t an option here, what with early ballots starting to go out this week.

So, on behalf of Toma and Petersen, he wants the justices to rule that all of the affected voters should be issued full ballots – with all of the races at all levels – for the upcoming election.

That position actually puts the two GOP lawmakers at odds with Stephen Richer. The Maricopa County recorder, a Republican, is asking the justices to rule that, absent the proof of citizenship, he has no legal authority to send full ballots to the affected voters.

Instead, Richer said affected voters should get a ballot with only federal races. And that’s because federal law has no such requirement to prove citizenship to vote for president and members of Congress.

Fontes, in his legal filings, urged the justices to allow everyone already registered to vote a full ballot. In fact, he told the justices that they have no authority to direct elected officials in the state’s 15 counties to re-register all these people as federal-only voters as Richer proposes.

In a prepared response, Richer press aide Taylor Kinnerup said her boss is not upset with the GOP lawmakers for weighing in, even if they do not back his legal position. He pointed out the legal fight playing out before the state’s high court is a “friendly lawsuit” designed to get the issue resolved, and soon.

“The recorder and the secretary are seeking clarity from the court and hoping for a swift, decisive resolution,” Kinnerup wrote.

Part of what makes the new filing interesting is that both Toma and Petersen have filed other lawsuits saying that those who have not provided “documented proof of citizenship” should not even be able to vote for president. They argued that it dilutes the votes of those who have shown they are citizens.

That argument was rejected by the U.S. Supreme Court.

But this situation, said Basile, is different. And it starts with the fact that all of the affected voters have assumed for years that they are entitled to vote in all races.

The issue before the court starts with a 1996 law that says anyone who wants a driver’s license must provide proof of legal presence. That includes not just citizens but also permanent legal presence.

In 2004, voters approved a requirement to prove citizenship to register and vote. But to keep enforcement simple, the law is written so that anyone who has a license issued after 1996 is presumed to meet that burden; others with older licenses would need to bring in separate proof.

The result is that after 2004, all new and updated registrations, including moving to another county, have been checked against the database of the Motor Vehicle Division.

It turns out, though, that if someone came in for a duplicate or updated license, MVD would use that date as the date of the license, even if the original license was issued before 1996 before proof of citizenship was required. That, in turn, failed to flag the registrations of 97,928 people who were not asked for and did not provide proof of citizenship.

That glitch wasn’t discovered until earlier this month. 

Fontes said the majority of affected voters are in the 45-60 year age group. And it turns out that more than 37% of them are Republicans, versus nearly 27.5% who are Democrats.

So, denying these people ballots for statewide, legislative and local elections would have a greater effect on GOP candidates. Ditto ballot measures supported or opposed by Republicans.

Basile, in his filings, makes no reference to that partisan differential. Instead, he said denying the right of those affected to vote in all elections would be unfair to people who have been registered to vote – and allowed to cast full ballots – for years.

And there’s something else.

“There is no affirmative indication that any of the affected voters actually are non-citizens,” Basile said. Yet he said that doing what Richer wants – letting them vote only on federal races – would disenfranchise them.

So given the lack of time, Basile told the justices the best alternative is to let these people who have presumed they are entitled to vote in all elections to do so. Then, after the general election, all the affected voters can be notified and given the time to produce the documents.

The justices have indicated they will consider the conflicting arguments from Fontes and Richer by the end of the week.

There is, however, no legal requirement for the court to decide who is right. And that would leave election officials no guidance on what to do.