The attorney for Secretary of State Adrian Fontes told a judge Tuesday that if he makes public the names of 218,000 voters who may not have proven citizenship ahead of Election Day that it will lead to voter intimidation.

Craig Morgan said he does not doubt that the names of whoever is on the final list – and he said there really isn’t a fully vetted list yet – are a public record. And that, he told Maricopa County Superior Court Judge Scott Blaney, means Strong Communities Arizona, which filed the request, eventually will get it.

But Morgan said there are reasons to not force Fontes to produce the list right now, before the election, saying that Strong Communities “or people affiliated with it” will abuse it.

“I’ll have video evidence to show you of at least one instance where people show up at these folk’s doors pretending to be from my client’s office or similar government agencies, saying ‘You need to prove to us that you can vote,’ ” he said. “That is something we believe mitigates against the right to inspection of imperfect information.”

James Rogers, from the Republican-linked America First Legal Foundation, which represents Strong Communities, said that “insinuation” by Morgan is unfounded.

“Our client does voter outreach all the time,” he said, having reached a million voters this year.

“Never been a single complaint,” he told Blaney, an appointee of former Gov. Doug Ducey. “Our client and none of our client’s volunteers have ever done the kind of things that he’s talking, as far as we’re aware.”

And Rogers said there’s a legitimate purpose to make this information public – and now.

“Voter confidence in the integrity of our elections is low because almost every election there’s some major problem,” he said.

Rogers said he believes that “most, if not the vast majority” on that list are citizens and entitled to vote.

“But it’s not the secretary’s right to hold that list to tell us if there’s a problem and not let anyone see it or do any outside vetting on it,” he said.

At the heart of the fight was a disconnect starting with the Motor Vehicle Division. Its records show if someone registered to vote after 1996, the year that state law required proof of legal presence to get a driver’s license.

That became important after voters approved a 2004 law requiring proof of citizenship to register and vote. That law was worded to presume that anyone who MVD said has a post-1996 license had provided such proof and therefore didn’t need to show it again when either registering to vote for the first time or changing registration.

As it turned out, there was a flaw in that plan: MVD included in that list of presumed citizens provided to county election officials anyone who had updated a driver’s license after 1996, like a change of address or a duplicate license, even if the original license was issued before that date. And using that information, election officials presumed these individuals had proven citizenship even though there were no such documents ever filed.

What Strong Communities wants is that list that Fontes said totals about 218,000 statewide. And it wants it now, before the election.

Morgan said there’s no reason for that.

He pointed out that the Arizona Supreme Court, confronted last month by the possibility of disenfranchising otherwise eligible voters, ruled that all 218,000 – or whatever the final number proves to be – can vote this year on all races.

The alternative was to allow them to vote only for presidential or congressional candidates, as the National Voter Registration Act permits that without providing proof of citizenship.

But the justices appeared convinced that the odds of noncitizens on the list is low, especially as they all had Arizona licenses issued in Arizona before October 1996. And the alternative, they concluded, was disenfranchising otherwise eligible voters.

“We aren’t going to be purging any voter rolls between now and the election because these voters get to vote,” Morgan told the judge, referring to that Supreme Court order. It is only after this election is done that the justices said officials need to determine who needs to provide citizenship proof for future elections.

He said there’s a reason why Stronger Communities, which tends to align itself with Republican interests, wants the list right now.

“And I think that’s revealing because they’d sure love to deprive these people of the right the Supreme Court’s already told them they could exercise later on this month,” Morgan said. “So we are not in a hurry. And we shouldn’t be.”

And if that argument doesn’t work to convince Blaney to dismiss the case, Morgan has another. He said the Secretary of State’s Office currently has no actual list that meets the demands of Stronger Communities.

“He’s in the process of working with the other stakeholders to make that list,” Morgan told the judge. All Fontes has, Morgan said, is a list from MVD of people “that could be subject to this glitch.”

Blaney, for his part, appeared unpersuaded by the fact that there may not currently be a complete and vetted list. 

“Couldn’t they just disclose who they base that on?” he asked.

And the judge noted something else.

It was Fontes who issued a press release both identifying the problem and coming up with that figure, one the secretary said earlier this month totaled 217,187. And Blaney said that press release with that specific number suggests Fontes has at least a preliminary list of who is affected.

 Morgan said the release from Fontes is legally irrelevant.

“He put out a press release saying, ‘This is the information we have,”’ he responded. Morgan said that list is still being vetted with the idea that a list will be released only when it is clear that it contains only the names of those who fall into that gap: having a pre-1996 license, a post-1996 change on the license, and a registration after the 2004 law took effect.

And Morgan said Fontes may use other tools to try to narrow the list before it is made public, like asking the state Department of Health Services if it has birth certificates for anyone on that list. That would eliminate the need for these individuals to dig up proof of citizenship to vote in future elections.

“So it’s not fair to say he has identified 218,000 people that have to provide documentary proof of citizenship,” Morgan said. “It just hasn’t happened.”

Still, Blaney questioned why Fontes can’t release names as the final verification is done.

Yet to be decided is whether there will be a court hearing, what with Strong Communities looking for a decision by Oct. 25.

The judge did not schedule one on Tuesday. And Rogers said one is not necessary.

But Morgan said he wants to present witnesses to explain to the judge that while voter registration records are public, the release of this list at this time falls within the exceptions to the state’s Public Records Law, exceptions that include privacy interests – the issue he raised about potential voter harassment – or a more generic exception when disclosure can be denied “in the best interests of the state.”

There is also the likelihood that whoever loses will seek Supreme Court review, further delaying final resolution. And that could make the whole issue moot given that the vast majority of Arizonans cast early ballots before Nov. 5.

The breakdown of those on the list provided so far by Fontes appears to be about 38% Republican, 27% Democrat and the remaining balance are those registered with minor parties or unaffiliated. Fontes said that reflects the fact that the glitch affects those 45 and older – those with the older licenses.