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A federal judge said Thursday he is ready to toss a bid by the head of the Arizona Republican Party to rule that Secretary of State Adrian Fontes is breaking the law by failing to clean up voter registration rolls.
In a new court filing, Judge Dominic Lanza acknowledges that Gina Swoboda and two Republican allies are claiming that there are at least 500,000 people registered to vote in the state who have moved or are dead. That, their attorney said, violates the National Voter Registration Act.
But the judge, in a 17-page draft order, the judge said that even if what they claim is true – and he does not address that issue – none of them have shown they are in any way harmed by what Fontes has or has not done.
“A citizen does not have standing to challenge a government regulation because the plaintiff believes that the government is acting illegally,” Lanza wrote. “Nor may citizens sue merely because their legal objection is accompanied by a strong moral, ideological, or policy objection to a government action.”
And the judge specifically rejected their claims that having all those extra people on the rolls somehow dilutes the votes of the challengers. He called that assertion “impermissibly speculative.”
Strictly speaking, what Lanza issued Thursday is not the last word. The judge said saying he will give the attorney for the challengers a chance to argue in open court next month that he is wrong.
But the judge made it clear he has reached a conclusion and said he would entertain oral arguments solely “to address any perceived errors in the court’s tentative analysis.”
There was no immediate response from attorney Andrew Gould, who filed the case.
The heart of the claim is that 14 of 15 Arizona counties have voter registration rates that Gould called “implausibly high.”
He claimed there are more registered voters – both active and inactive – than there are residents who are 18 or older. And all the other counties with the exception of Greenlee have registration rates between 80 and 99%.
By contrast, he said, data from the U.S. Census Bureau puts the average figure nationally at 69.1%. And Gould, citing the same data, said the expected registration rate for Arizona should be 69.9%
“Based on even the most conservative data sources, Arizona has at least 500,000 registered voters on the voter rolls who should have otherwise been removed,” he said.
In fact, Gould argued, the figure could be as high as 1.27 million. That is out of more than 4.6 million active registered voters and another about 708,000 inactive voters.
That latter category includes people for whom there is evidence they have moved.
The National Voter Registration Act requires the state to send out a forward-able notice to the last known address to find out if that person is still eligible. In the meantime, he or is is put into a list of “inactive” voters.
Still, anyone on that list can cast a ballot by coming in and providing proof of residence. But if there is no response and the person does not vote for two election cycles, the law says they have to be removed from the rolls entirely.
Swoboda sued along with two others involved in GOP politics: Scot Mussi, president of the Republican-aligned Free Enterprise Club, and Steven Gaynor, who made an unsuccessful run as a Republican for secretary of state in 2018 and was briefly in the 2022 gubernatorial race before withdrawing. They asked the judge to order Fontes to “develop and implement additional reasonable and effective registration list-maintenance programs.”
Gould said his clients have a right to sue to ensure the voter rolls being as clean as possible.
“Because the secretary does not maintain accurate voter rolls, ineligible voters have an opportunity to vote in Arizona elections, risking the dilution of plaintiffs’ legitimate votes,” the lawsuit states. But Gould provided no examples of people casting ballots who did not have the right.
It didn’t matter. Lanza said even if Fontes was not maintaining the voter registration lists as required by federal law, that doesn’t mean it would result in the voters of others being diluted.
“Such dilution could result only after: (1) an ineligible voter requests an early ballot at a polling place; (2) casts a ballot; (3) that ineligible ballot is tabulated; and (4) sufficient other ineligible voters engage in the same series of steps in a number sufficient to ‘dilute’ plaintiffs’ votes,” the judge said. All that, said Lanza, was a “long chain of hypothetical contingencies” which did not rise to the level of providing a basis to sue.
The judge was no more impressed by the alternate legal theory of the challengers that Fontes’ alleged failure to comply with what federal law requires undermines their “confidence” in the election system.
“Plaintiffs effectively ask the court to find that their fear of vote dilution – which they allege erodes their confidence in the electoral process and discourages their participation – is an injury that is independent from the actual vote dilution they separately identify as one of their injuries,” Lanza wrote.
But for the same reason Lanza said the vote dilution claim can’t stand, he said this theory was no better, saying they were “repackaging their fear of vote dilution … as an independent injury.”
More to the point, he said, their self-proclaimed fear alone of what might happen is legally insufficient to form the basis for this lawsuit.
“Plaintiffs cannot manufacture standing merely by inflicting harm on themselves based on their fears of hypothetical future harm that is not certainly impending,” Lanza wrote.
Finally, the judge rejected claims by challengers that less-than-accurate voter registration rolls mean they have to spend more money on things like voter education and monitoring elections for fraud and abuse. He called these “vague claims that a policy hampers its mission.”
