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Thousands of Arizona voters won’t be removed from rolls, AG concludes

Key Points:
  • Arizona voters who never provided proof of citizenship cannot be kicked off registration rolls
  • A glitch in the Motor Vehicle Division records caused the issue, not the voters’ fault
  • County recorders can register applicants as “federal only” voters without proof

Tens of thousands of Arizona voters who never provided the legally required documented proof of citizenship cannot be removed from the registration rolls, Attorney General Kris Mayes concluded Monday.

According to Mayes, a glitch in how information was stored and recorded was discovered last year, where the Motor Vehicle Division was telling county recorders that people who wanted to register to vote had to have a state driver’s license that was issued after Oct. 1, 1996. That is when Arizona began requiring proof of citizenship to get a license.

But some of those on that list actually had licenses that predated the proof-of-citizenship requirement.

The Arizona Supreme Court agreed to let those in this category vote in the 2024 election. But the justices did not address what would happen going forward.

Now, Mayes is saying that county recorders cannot unilaterally cancel the registration of these individuals.

The attorney general said, even the failure of those affected to respond to notices asking for such proof cannot become the basis for removal. She said only when recorders have “affirmative evidence” that someone is not a citizen can they initiate the cancellation process.

“County recorders may take steps to inquire whether the affected voters are U.S. citizens, including by asking them to provide satisfactory evidence of citizenship,” Mayes wrote.

“If an affected voter responds by providing such evidence, that should dispel doubt,” she continued. “But if an affected voter does not respond, their mere lack of response does not, under current law, authorize the county recorder to cancel the voter’s registration, in whole or in part.”

Secretary of State Adrian Fontes, who sought the legal opinion, agrees with the decision.

“The opinion stands for the notion that these folks have a right to vote,” he told Capitol Media Services.

“And it falls to the government to prove otherwise — which is the way of every other accusation — every other denial of rights exists,” Fontes said. “So the burden has shifted back to where it belongs.”

The new opinion is the latest twist in what has been a flurry of disclosures and accusations following the discovery of the glitch by then-Maricopa County Recorder Stephen Richer.

The 1996 Arizona law requires proof of legal presence to get a driver’s license. And a 2004 law mandates proof of citizenship to register.

That 2004 law says that anyone with a post-1996 license is presumed to have furnished that proof. But anyone registering to vote for the first time after 2004, or changing registration who has one of those pre-1996 licenses, was supposed to be required to provide citizenship proof.

What happened, though, was that if someone with a pre-1996 license changed an address on a license after 1996 or got a duplicate, the coding reported to county election officials used that later revision date, showing — incorrectly — that it was a post-1996 license and, therefore, proof of citizenship had been provided.

There was a lot of finger pointing, with election officials blaming it on MVD and an aide to Gov. Katie Hobbs saying it is the fault of how the counties were making the inquiry.

The Supreme Court ruled that it would be wrong to deny those affected the right to vote, as the problem was not the fault of the voters. Justices said it would be improper to try to remove them from the rolls so close to the election when they would have little time to dig up and provide citizenship proof and be entitled to “due process” before their voting rights could be curtailed.

A spokesman for MVD said that steps have been taken to ensure the problem does not repeat itself.

All that, however, still left open the question of what happens now to those who fell victim to that glitch.

Mayes said Arizona law gives county recorders only limited powers in these situations.

What is required, she said, is for county recorders to notify new applicants for voter registration within 10 days if they do not also provide proof of citizenship. Absent that proof, said Mayes, the recorder then must reject the applications.

But the attorney general said that Proposition 200 — the 2004 requirement for proof of citizenship — only empowers a recorder to reject an application to vote in elections if the documentation is missing. What it does not do, she said, is allow recorders to go back and cancel a prior registration presumed to be invalid.

“Here, county recorders already accepted the voter registration of the applications of the affected voters long ago,” Mayes said.

“Indeed, many of the affected voters have been voting for years (and some for as many as 20 years),” she continued. “The idea of ‘rejecting’ their applications now would be like an employer ‘rejecting’ job applications of thousands of longtime employees.”

Put simply, Mayes said, a move to cancel the existing registrations would not be rejecting their applications — again, from a long time ago — but would be tantamount to “terminat(ing) their current status.”

Less clear is how many of the 4.47 million registered voters are affected.

At one point, the estimates reached as high as 300,000 and as low as 98,000. Fontes said it’s hard to come up with a precise figure.

Mayes said one part of that problem is that those licenses issued before Oct. 1, 1996, did not require proof of citizenship. But she said that some of these people may have subsequently submitted other evidence like passports, birth certificates, naturalization papers or tribal identity numbers.

“And it may be impossible to fully answer that question now, because county recorders are not required to keep documents submitted as evidence of citizenship for more than two years,” Mayes said.

Fontes said the same is true for people who have upgraded their licenses to a Real ID — a form of identification used for air travel. And to do that, he said, they had to provide citizenship proof.

It’s not just Mayes who concluded that those affected should be allowed to continue to cast ballots. Gina Swoboda, who chairs the Arizona Republican Party, said she agrees with the conclusion by the Democratic attorney general that the power of county recorders to cancel registration is limited.

“If the recorders have affirmative proof that one of the voters is a non-citizen, they may initiate a notice and cancellation process,” said Swoboda, who previously worked in the Secretary of State’s Office. “But they may not otherwise do so because of this error.”

Fontes acknowledged that, during the legal debate about 2024 election eligibility, he said he would set up a portal that would allow those who believe they were affected to find out and take some action. But he said Monday that, based on subsequent conversations with county recorders, the decision was made to let each county — the ones that have the voter registration records — to “take care of their own voters.”

None of this affects registrations going forward.

Mayes says if someone seeks to register with a driver’s license that the MVD says was initially issued prior to Oct. 1, 1996, counties can register that person to vote in all elections only if the applicant also submits evidence of citizenship.

But the National Voter Registration Act allows people to register to vote in federal elections without such documented proof. And in that case, Mayes said the applicant who doesn’t prove citizenship can be registered as a “federal only” voter who can cast ballots in presidential and congressional races.

Number of those affected (Source: Secretary of State’s Office) 

Apache – 3,684

Cochise – 5,024

Coconino – 5,596

Gila – 3,361

Greenlee – 375

La Paz – 521

Maricopa – 104,185

Mohave – 4,517

Navajo – 6,433

Pima – 31,874

Pinal – 17,835

Santa Cruz – 1,879

Yavapai – 11,339

Yuma – 4,572

Total – 202,760

Feds drop Biden administration challenge of Arizona election law

The Trump administration is dropping its 2022 challenge to an Arizona law designed to require proof of citizenship to vote in federal races.

That doesn’t mean, however, that the state can start enforcing the law.

The move by the Department of Justice is in many ways no surprise. Since President Trump took office and put his own people in charge, the agency has been stepping away from litigation filed during the Biden administration to protect the rights of voters.

Senate President Warren Petersen cheered the action.

“A major win for election integrity and the rule of law!” the Gilbert Republican posted on his X, claiming credit for the move. “This follows my letter to the Department of Justice asking for them to back out of this misguided Biden lawsuit.”

But even Petersen conceded the case is not over, saying that House and Senate Republicans will continue to defend the 2022 law “against the special interest groups challenging it.”

That was echoed by Elisabeth Frost, an attorney at Elias Law Group who represents a variety of private organizations involved with voting rights.

“We are going to fight for Arizona voters whether Trump’s Department of Justice is with us or against us,” she said.

Hanging in the balance is whether close to 50,000 Arizonans will be able to vote in the next presidential race.

A 2004 voter-approved initiative requires proof of citizenship to register to vote.

However, the National Voter Registration Act also includes a provision allowing people to use a special federally designed form to vote in federal elections. That form mandates that applicants sign a sworn statement avowing, under penalty of perjury, that they are, in fact, citizens.

In 2020, however, Biden outpolled Trump in Arizona by 10,457 votes. So two years later Republican lawmakers, with the blessing of Republican Gov. Doug Ducey, approved a measure to say that form can’t be used to vote for president in 2024 and beyond unless there also is citizenship proof.

But before that could happen, U.S. District Court Judge Susan Bolton struck down that requirement as illegal and discriminatory.

She also voided another provision that said anyone who uses a federal form cannot vote by mail as well as a requirement directing county recorders to conduct checks of voters they have “reason to believe” are not citizens.

That case continues to work its way through the court system, with the latest ruling just a month ago by the 9th Circuit Court of Appeals upholding the essence of what Bolton concluded. In fact, the appellate judges told Bolton to take another look to determine not just whether the legislators acted illegally — what she already concluded — but whether they acted with an intent to discriminate.

Now the Department of Justice told Bolton it wants out.

“The United States no longer seeks to press its claims in this case,” wrote Daniel Freeman, an attorney with the Civil Rights Division. He also wants Bolton’s earlier judgment in favor of the federal government dismissed.

It remains unclear whether the decision of the Trump administration to step aside now — after there have been several rulings — will aid the state in its continued efforts to block what are known as “federal only” voters from casting a ballot in 2028.

Some of this depends on what happens now that the case is back before Bolton to determine if lawmakers, in approving the law, acted with “discriminatory intent.”

A finding of intentional discrimination by itself is significant, and not just because of what it says about the GOP lawmakers who approved the plan and their allies like the Free Enterprise Club that pushed it.

It also would make it harder for legislative leaders to argue when the case goes to the Supreme Court — where it is virtually certain to head after the latest round of evidence and hearings — that the restrictions were based solely on their belief that they were necessary to prevent voter fraud. This would open the door to findings that the state violated other provisions of the Voting Rights Act.

Lawmakers may have an uphill fight.

In sending the case back to Bolton, the Court of Appeals told her that she needs to look beyond whether the GOP legislators who pushed the measure acted sincerely in their belief that non-citizens were voting.

The appellate judges said the test is whether lawmakers actually had such evidence. And to this point, they said, the Legislature has failed to produce any such evidence.

Bolton has not yet set a date for a hearing on what the appellate judges sent back to her — or even whether to grant the request by the Department of Justice to back out of the case.

All this, however, could become moot.

The U.S. House this week approved the Safeguard American Voter Eligibility Act that would require proof of citizenship to vote in federal elections along with a provision to require states to regularly purge their voter rolls.

A similar measure was killed last year in the Democratic-controlled Senate. Republicans now are in control, but getting the measure to Trump would require them to deal with a possible Democratic filibuster.

9th Circuit finds Legislature acted with ‘discriminatory intent’ in passing proof of citizenship voting law

The 9th U.S. Circuit Court of Appeals found the Arizona State Legislature may have acted with “discriminatory intent” when it passed a pair of 2022 laws meant to prevent voter fraud. 

The court upheld district court findings that the laws requiring further proof of citizenship for federal voters, proof of residence for state voters, and systemic checks and registration cancellations given a “reason to believe” someone is not a citizen, were illegal. 

But in conflict with the district court, the appellate court found persuasive evidence that the Legislature enacted the two laws with discriminatory purpose and remanded the issue to the district court. 

“Although some provisions of the Voting Laws are legitimate and lawful prerequisites to voting, many of the challenged provisions are unlawful measures of voter suppression,” Judge Ronald Gould wrote. 

The Legislature passed and former Gov. Doug Ducey signed H.B. 2243 and H.B. 2492, which collectively enacted provisions to prevent non-citizens from voting in elections. 

Under the legislation, federal-only voters who failed to provide proof of citizenship were barred from voting by mail or in presidential elections. State voter registration applicants were required to check a box attesting to citizenship, and provide a birthplace and documentary proof of residency. 

Further, the laws required county recorders to conduct periodic citizenship checks and cancel any registrations for voters whom recorders had a “reason to believe” were not citizens. 

After the two laws were passed, eight lawsuits followed, eventually consolidating into one legal challenge. U.S. District Court of Arizona Judge Susan Bolton weighed in first in September 2023 and again in March 2024, with her judgment made final in May. 

In sum, she found sections of the National Voting Rights Act and the Civil Rights Act blocked portions of the laws, and barred the state from requiring state voters to provide birthplace and federal-only voters to provide proof of citizenship to vote by mail and in the presidential election.

She further blocked the state from rejecting state forms without proof of citizenship and proof of residency without registering the voter as federal-only, from mandating registration denial if a voter fails to check a box attesting to citizenship, and from directing county recorders to review and cancel registrations based on the “reason to believe” standard. 

Though Bolton enjoined large swaths of the laws, she did not find a discriminatory intent. 

And in a Tuesday ruling, Judges Ronald Gould and Kim McLane Wardlaw went a step further in the majority opinion by finding the district court held too high of an evidentiary bar in its finding of no discriminatory intent and remanded the issue. 

The panel found the district court should not have taken the context surrounding the bill, including the charged political climate following claims of voter fraud in 2020, language used by the Arizona Free Enterprise Club, when lobbying material and the quick passage of the bills in the 2022 session, separately and discretely, but should have instead sewn them together to assemble a picture of discrimination. 

“The contentious political climate arising from claims of illegal voting may seem innocuous standing alone. So might the Free Enterprise Club’s use of the term “illegals” in lobbying materials, if standing alone. So might H.B. 2243’s hasty passage departing from legislative norms, if standing alone,” Gould said. “But, viewed in context, these discrete pieces of evidence take on a different meaning and support an inference of discriminatory intent. Factfinders considering whether a law was passed with discriminatory intent must analyze the totality of the circumstances.” 

In dissent, Judge Patrick Bumatay claimed the laws should not have been rejected wholesale. 

“When courts are forced to enter the political realm—as challenges to voting laws require—we must be our most deliberate, careful, and thoughtful. Our robes are not blue or red but black. Sweeping rulings setting aside a State’s laws don’t help,” Bumatay wrote. “While some parts of H.B. 2492 and H.B. 2243 may violate federal law, in no way must they be completely invalidated.” 

He agreed with his colleagues in finding the “reason to believe” provision and the citizenship checkbox requirement to be contrary to federal law, but split with the opinion on every other front. 

“Except as noted above, we should have vacated this sweeping injunction,” Bumatay wrote. 

Bumatay said the finding of discriminatory intent was based “on the weakest of evidence” and said the “majority views any voter-verification requirement as discriminatory voter suppression.’ 

He argued instead the evidence was circumstantial and failed to constitute wholesale legislative bias. 

“The district court did view the evidence in context—and concluded that it was unpersuasive,” Bumatay wrote. 

In a post on X, Senate President Warren Petersen said the legislature would be appealing the ruling to the United States Supreme Court. 

Maricopa County restores around 2,000 voters after incorrectly demanding proof of citizenship

Maricopa County incorrectly flagged around 2,000 longtime registered voters as needing to provide proof of citizenship in order to vote in Tuesday’s election, county officials confirmed Sunday.

That number is in addition to nearly 900 Pinal County voters who were incorrectly told the same thing, which Votebeat first reported Saturday.

The voters who were incorrectly asked for the information will no longer need to provide proof of citizenship before 7 p.m. Tuesday in order to cast ballots in this election, as some number of them were initially told, according to officials in both counties.

If voters had already attempted to vote an early ballot and had the ballot put on hold or voided, those ballots will now be counted. Voters who had not yet cast their ballots should not have an issue when they go to vote.

That means these voters will have the chance to help determine the result of elections in this divided swing state, where close margins are expected from the presidential race to statewide ballot propositions.

Maricopa County had moved the voters to “not registered status,” which meant that they were no longer on the active voter rolls, according to county Recorder’s Office spokesperson Taylor Kinnerup. If any of those voters cast an early ballot, it appears that the county initially voided their ballots. Officials have since worked to “restore any ballots that were voided … and those votes have since moved forward,” Kinnerup said.

Officials restored the voters’ status on Oct. 21, Kinnerup said. She did not respond to a question about why the office changed course.

After learning of the issue in Pinal County, Votebeat reached out to the state’s largest counties, including Maricopa, to check whether incorrect information had been conveyed to voters there as well.

Besides Maricopa and Pinal counties, it’s unclear whether other counties incorrectly flagged voters’ registrations, and if any voters will have trouble voting Tuesday because of it. Pima, Yavapai, and Coconino, the three other counties that have so far responded to inquiries, all said they did not incorrectly flag voters in their systems.

The problem stems from two recent court decisions related to proof of citizenship requirements in the state.

The voters who were affected had tried to update their voter registration just before the Oct. 7 voter registration deadline. The county had flagged these registrations because of changes the county made to the way it was processing voter registration forms in response to two separate court decisions, both regarding requirements in state law for voter proof of citizenship.

Arizona has a unique law that requires proof of citizenship to vote in state and local elections. Federal law requires applicants only to attest to their citizenship to vote. If an Arizona applicant doesn’t provide proof of citizenship, they are placed on a “federal only” voter list and are restricted to voting in federal contests like presidential and congressional races.

In the first recent court decision related to the state’s laws on proof of citizenship, the U.S. Supreme Court ruled Aug. 22 that county recorders should completely reject voter registration forms from voters if they register using a state form and don’t provide proof of citizenship. Previously, these voters would have been registered as federal-only voters. The ruling is in effect until the courts can fully consider the case.

The second court decision came after the state realized that a problem with the Motor Vehicle Division database had allowed about 218,000 longtime driver’s license holders to become full ballot voters, even though they had not provided proof of citizenship. The Arizona Supreme Court ruled Sept. 20 that these voters would not have to provide citizenship proof until after the November election.

Still, starting sometime soon after the state discovered the MVD problem, the state reprogrammed its system to flag those 218,000 voters if they tried to make a change to their voter record, to notify the counties that they hadn’t yet provided proof of citizenship. The Secretary of State’s Office provided guidance in early October to county recorders telling them that, even though the system was flagging these voters, they should continue to allow them to vote a full ballot until after November.

Instead, from the time the state’s system was reprogrammed to the voter registration deadline on Oct. 7, if a voter in Maricopa or Pinal county on this list of 218,000 tried to update their voter record using a state form, the counties flagged their registration until they provided proof of citizenship.

The counties both mailed at least some of these residents a letter to tell them they needed to provide proof of citizenship before they voted.

“After further consideration, the decision was made to fully restore those voters from the not registered status, only if they were previously an existing, registered voter,” Kinnerup said on Sunday. “This means any Maricopa County voter impacted by the previously discovered MVD data oversight has since been restored back to their original status of either full or fed-only ballot for this upcoming election.”

Jen Fifield is a reporter for Votebeat based in Arizona. Contact Jen at jfifield@votebeat.org.

Votebeat is a nonprofit news organization covering local election integrity and voting access. Sign up for their newsletters here.

Judge orders release of 98,000 names of voters possibly lacking citizenship proof

Secretary of State Adrian Fontes was ordered Thursday to turn over the names he has on a list of registered voters of those who may not have provided proof of citizenship — at least the first 98,000.

In an often strongly worded order, Maricopa County Superior Court Judge Scott Blaney, originally appointed by then-Governor Doug Ducey, said it is clear that the information sought by Stronger Communities Foundation is a public record and subject to disclosure.

Fontes did not dispute that contention. But he argued that he was entitled to withhold the information because there is an exception to the Public Records Law in cases where release would not be in the “best interests of the state.” In fact, the secretary said he would withhold information of that “could save just one life.”

The judge was not convinced, saying there was a “lack of any evidence that any individual life was in danger.”

Blaney also said that neither Fontes nor his office provided any evidence that Stronger Communities, which operates as EZAZ.org, has ever used information it has to harass or intimidate voters, conduct mass voter challengers, or single out voting locations to protect or harass voters.

And the judge said that Fontes provided “inconsistent testimony” on exactly how many people are affected by what has been called a “glitch” in a system used by the Motor Vehicle Division that resulted in questioning whether some people on the current voter rolls have not provided legally required proof of citizenship.

Still, Blaney acknowledged Fontes’ concern that there may not yet be a complete list, with estimates of those affected at one point during the trial earlier this week going as high as 345,000.

So he ordered Fontes to release by noon on Monday that initial list of 98,000, which the secretary finally conceded under questioning in court he does have.

And, acknowledging possible threats, Blaney forbade Stronger Communities from using the list to contact any of the affected voters until after Tuesday’s election. And he also said that until next Wednesday the organization can release copies of that list only to county recorders, the Senate president, the speaker of the House, and members of the Elections committees of the House and Senate.

An aide to Fontes said he was studying the order “and weighting our options as to how to move forward.”

Thursday’s ruling is a victory for Stronger Communities, which says it uses information from voter records to do outreach.

Merissa Hamilton, who chairs the organization, acknowledged that not getting the list until Monday means little could be done ahead of the election the following day to determine if there are people on the list who are actually not citizens. There’s also the fact that more than two million Arizonans already have cast early ballots.

And Hamilton told Capitol Media Services this has never been about trying to block the 98,000 — or however many end up on the final list — from casting ballots this year.

“The super majority of the list are probably citizens,” she said. “But those that aren’t — if that exists in this situation — now have fair warning they will get caught if they try to break our laws.”

What caused this lawsuit is that a 2004 voter-approved law requires proof of citizenship to register.

A separate 1996 law requires proof of legal presence to get an Arizona driver’s license. And based on that, the 2004 law said that anyone who had a license issued since October 1996 was presumed to already have provided that proof.

Those with pre-1996 licenses, however, were required to furnish such proof if they were registering to vote for the first time or if they had moved to another county.

The problem was that MVD was telling counties that some of these people had post-1996 licenses. That’s because its reports listed the last date of any activity, like a change of address or a duplicate license, rather than the original issue date.

Bottom line was that counties, using this mistaken information, registered people who lacked the legally required proof.

By law, anyone without such proof can vote only on races for president and Congress, as federal law does not require citizenship proof.

But the Arizona Supreme Court ruled anyone on the list can vote on any race on the ballot this year, concluding there was no hard evidence anyone on the list actually was not a citizen. More to the point, the justices said they would rather not err on the side of disenfranchising voters, most of whom they believe actually are citizens, so close to the election over a record-keeping problem.

Fontes initially told the Supreme Court there were 98,000 on the list. His most recent press statement put the figure at about 218,000.

All that resulted in Stronger Communities seeking the list.

The group did not cite a reason. And one is not required under the Public Records Law.

And when Fontes refused, it sued.

“The defendants are stonewalling and have unlawfully refused to fulfill it,” the attorney wrote. “Apparently, insulating themselves from embarrassment is more important to the defendants than following the law.”

In attempting to keep the list secret, at least for the time being, Fontes got a professor from the University of Chicago to testify on political violence.

Blaney, however, pointed out that none of his information was specific to Arizona. And the judge said the professor was guilty of “gratuitous political bias in his report and in his testimony.”

That left Fontes and his own testimony which included disclosing he wears a bullet-proof vest and has personal security. And the secretary said while he had no evidence that Stronger Arizona would use the list to harm voters, he feared what would happen when others get the information — at least while the election is pending and there are threats from some quarters to hang people for tyranny.

“I don’t want blood on my hands,” he said.

None of that convinced Blaney to allow Fontes or his office to keep the list secret.

“Although the defendants provided testimony as to generalized political threats in the current environment, they did not provide any evidence that (EZAZ.org) has or will engage in activities that would jeopardize the safety, security, or voting rights of Arizonans,” the judge said. In fact, he said, the evidence is to the contrary.

He pointed out the group has obtained, under public records law, a separate list of about 42,000 “federal only” voters. These are people who clearly have not provided the state-required documentary proof of citizenship, meaning they can vote only in the presidential and congressional races.

Blaney said EZAZ.org “has not been implicated in any violations in the privacy of confidentiality rights of those voters.”

“EZAZ.org provided unrebutted specific, credible evidence that it carefully vets and trains members, encourages a friendly environment, and has been a good steward of private information, including the federal only voter list at its disposal,” the judge wrote.

Allowing EZAZ to provide the list to lawmakers also came over Fontes’ objections.

“I know that various members of the Legislature have lied, have continued to lie,” he told Blaney at the hearing earlier this week, though he did not name names.

“And I don’t see any of them stopping a lot of these lies and assisting a lot of the folks who are fomenting the divisiveness that we have in our society for their own personal or political gain,” Fontes said. “So, yeah, I’m going to fight like hell to keep a lot of those folks from having these lists.”

Blaney said that amounted to Fontes saying that lawmakers would provide the list to outsiders “with the specific intent to encourage third party groups to engage in violent or harassing behavior, resulting in possible injury or death.”

“The secretary’s claims were not credible and not supported by the evidence,” the judge said.

Perhaps the most significant part of Blaney’s ruling, separate and apart from this specific fight, is his conclusion that the exceptions in the Public Records Law are narrow.

He rejected Fontes’ contention the information should not be made public because the list is still not complete.

“An agency cannot withhold records because it believes that these records contain imperfect or unreliable information,” Blaney wrote. “Indeed, when public agencies make mistakes, the public has an even greater interest in the disclosure of such information.”

And he took a particular swat at Fontes for his claim that he can withhold the information if it would save just one life.

“If the court were to adopt this standard — that a public official may withhold public records whenever he subjectively believes such withholding could somehow ‘save even one life’ — the court would be adopting an impermissibly broad, arbitrary standard where the ‘best interest of the state’ exception swallows the entirely of the Arizona Public Records law,” Blaney wrote.

Top Republicans support Fontes on nearly 100,000 questionable voters

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.

Arizona Supreme Court asked to address nearly 100,000 voters made ineligible by 2005 law

PHOENIX – The Arizona Supreme Court is being asked to decide whether close to 100,000 registered voters can cast a ballot in upcoming state and local elections.

A pair of lawsuits being filed today ask the justices to decide how the state and counties must deal with the fact that there is no evidence that close to 2.5% of all voters have not provided the legally required “documented proof of citizenship.” That makes them legally ineligible to vote a full ballot under the terms of a law that took effect Jan. 24, 2005.

Maricopa County Recorder Stephen Richer wants the court to declare that the affected individuals will be able to vote only in federal races. That’s because federal law has no such proof-of-citizenship requirement to cast a ballot for president, Senate or House.

But Secretary of State Adrian Fontes is filing his own legal papers, saying there is no reason to believe that virtually all of these people – many of whom have been voting for years – are not actually citizens, even if the paperwork is missing. He said all have signed forms swearing, under penalty of perjury, that they are eligible to cast a ballot.

There’s also the chaos it would cause so close to the election.

Both Richer and Fontes describe their litigation as “friendly,” designed to get a clear decision from the Supreme Court – perhaps by the end of the week.

Speed is crucial.

Overseas ballots are supposed to go out by Friday. And early ballots will be mailed in less than a month.

What’s behind the last-minute scramble is that a check of records by Richer’s office found that someone who was presumed registered to vote in all elections had never provided the legally required “documented proof of citizenship.” And that, he said, means that person had not complied with that 2005 law.

Fontes said that discovery led his own agency to take a closer look at others in the voter rolls. And what his staff found, he said, was something close to 98,000 who are in the same situation.

The secretary of state stressed stressed this wasn’t intentional, saying many of these people have been voting for years – and their ballots have been accepted – under the premise they were in compliance with the law.

Still, it is likely to rekindle complaints by some who insist that the state’s election rolls are packed with people who are ineligible. That includes a federal court lawsuit by a conservative group which is accusing all 15 county recorders of failing to do their jobs to ensure that only citizens are voting.

It starts with that 2005 law which imposed the state’s first-ever requirement for proof of citizenship to register, a requirement that exists nowhere else in the country.

But that law also says anyone registering from that point forward who already had a driver’s license issued after Oct, 1, 1996 is presumed to be legally registered. That’s the effective date of a law signed by then-Gov. Jan Brewer that individuals needed to prove legal presence to get a license.

And the same law essentially grandfathered in as presumed to be a citizen anyone whose license is older than that, all without having to provide new citizenship proof.

The problem involves those who registered to vote after that 2005 effective date but whose driver licenses predate 1996.

As new registrants, they expect to provide documentary proof of citizenship, regardless of the age of their license. Ditto those who move to another county and reregister to vote there.

That, said Fontes, normally triggers a check of MVD records.

Richer said the problem is that some people who had pre-1996 licenses – the ones without proof of citizenship – have gone to MVD for a duplicate license or to change their address.

The agency, however, used this new issue date indicating the person actually had a post-1996 license – meaning they had provided proof of citizenship – when, in fact, they never had. And county election officials, relying on those MVD records when facing someone trying to register to vote after 2004, never asked for any citizenship proof.

“This data coding oversight resulted in an inaccurate belief that certain people had provided documentary proof of citizenship to the MVD,” according to Fontes’ office.

It only came to light earlier this month.

Maricopa County was checking the citizenship of one person who had one of those older licenses who was updating voter registration. It turned out that this person was a lawfully permanent resident – entitled to an Arizona license under the 1996 law – but not a citizen, with the issue being that MVD coding.

Fontes said despite the registration, that person never cast a ballot.

Now aware of the problem, Fontes said further checks were made across the system. And he believes there are about 98,000 whose records reflect the lack of submission of documentary proof of citizenship.

“We don’t have any reason to believe that anyone in this gap is not an eligible voter,” Fontes said.

“We don’t have any reason to believe that they’re not eligible citizens in spite of the fact that we did find one,” he continued. “All we know is they fit into this category and all of this requires more research.”

But with time running out, the plan was hatched to have Maricopa County ask the Supreme Court for an order spelling out that anyone in this category could cast a federal-only ballot. That is based on that federal law saying people can vote in federal elections without proof of citizenship.

Then, the Secretary of State’s Office would be ready with a response asking the justices to allow those affected to vote in all elections, as they have been doing until now.

“I think that they should,” said Fontes. “Each of these individuals have sworn an affidavit, under penalty of perjury, that they are United States citizens.”

In fact, Fontes said, that is sufficient in the other 49 states to register to vote. Only Arizona requires would-be registrants to provide documentary proof.

But the real goal is to get a definitive decision – which the state Supreme Court should be able to provide – as soon as possible. Fontes said since this is strictly an interpretation of state law, there is no reason for federal court involvement.

He said if the justices conclude that these people are entitled to vote only in federal races there will be an outreach effort to let them know – and not just that they will get a ballot without state and local races, either when early ballots go out or when they show up at the polls.

Fontes said there’s actually another option for those who want to cast a full ballot. He said they can provide proof of citizenship to county officials, the same proof now required of new registrants, right up through 7 p.m. on Election Day.

Not everyone with a pre-1996 license falls into this questionable category, even if they haven’t changed their voter registration.

Fontes said many people have applied for a Real ID. That is an enhanced driver’s license that, among other things, will be required next year to board a commercial aircraft.

And, in getting a Real ID, an applicant had to provide proof of citizenship like a passport, meaning they are, and remain, eligible to vote in all elections.

Fontes also said none of this has any legal effect on prior elections, even if it turns out that someone without the required proof of citizenship voted on a statewide race. He said courts presume that there has to be finality to elections.

Of those affected, Fontes said it appears they are spread out among all the counties in about the same percentages as the number of registered voters.

So, for example, of the slightly more than 4.1 million registered voters, he would expect about 59% of them to be from Maricopa County, 15% from Pima County, close to 6.5% from Pinal County, about 4.1% from Yavapai County and the remainder in proportion to the remaining counties.

Fontes said it also appears that there are more Republicans on the list than Democrats or independents, also largely a function of total registration.

Gov. Katie Hobbs, in a prepared statement, said she identified and fixed what she called an “administrative error” dating back to 2004.

“As soon as I became aware of the problem, I directed MVD to aggressively develop and implement a solution,” she said. Hobbs also said that she “will be implementing an independent audit to ensure that MVD systems are functioning as necessary to support voter registration.”

All of this is occurring as some Republicans on the state and national level, without citing proof, contend that people who are not citizens are affecting federal elections. They are pushing for a national law to require proof of citizenship to vote in federal elections.

U.S. Supreme Court gives Republicans partial victory

A divided U.S. Supreme Court agreed Aug. 22 to let Arizona block some, but not all, people who don’t provide proof of citizenship when registering from this point forward from voting in this year’s presidential race.

In a brief order, the justices said Arizona is entitled for now to enforce a provision of a 2022 law that spells out anyone who applies to vote using a state registration form from now on must provide “satisfactory evidence of citizenship.” The court said that can continue until a federal appeals court can decide the legality of the statute.

But the justices left in place lower court orders that bar Arizona from requiring such proof from those who sign up to vote using a form designed by the federal Election Assistance Commission.

That form requires only that would-be voters swear, under penalty of perjury, they are eligible to vote. And those who register with that form are entitled to vote only in federal elections.

So that leaves the door open for those who fail to provide such proof to continue to sign up using that federal form between now and the Oct. 7 registration deadline.

More immediately, the court ruling is prospective only. That means the more than 41,000 Arizonans who already are on the rolls as federal-only voters, regardless of which form they used to sign up – still can decide whether they want to cast a ballot for Kamala Harris, Donald Trump or someone else.

And nothing in the decision affects the ability of those who signed up using the federal form who didn’t provide proof of citizenship from voting in the race for U.S. Senate between Kari Lake and Ruben Gallego. State lawmakers conceded years ago they have no authority to regulate in that area.

Ditto in the nine congressional races.

Finally, the justices said the state cannot enforce another law saying those who are federal-only voters must cast a ballot in person. They left in place lower court rulings that the state, having decided people can vote by mail, cannot deny that privilege to some. 

Senate President Warren Petersen, one of those who sought Supreme Court intervention, acknowledged that the ruling is only a partial victory.

“While we’re grateful SCOTUS recognized our state’s sovereignty by allowing our laws requiring proof of citizenship to register to vote in Arizona be enforced, individuals who are living here illegally are still able to register on a federal form without providing proof of citizenship,” he said in a prepared statement.

“They must only attest they are lawful citizens,” Petersen said. “Then they are able to vote in the presidential and congressional races, as well as by mail, thus influencing the outcome of our elections.”

That claim of non-citizens voting was echoed in a statement by the Republican National Committee which joined with Petersen and House Speaker Ben Toma to seek Supreme Court intervention. It called non-citizen voting “a major threat to our election security.”

“The corrupt leaders driving non-citizen voting are anti-American leftist radicals set on stopping President Trump and his America First policies,” the RNC statement said. “They want open borders and open elections, because they are counting on illegal votes.”

But no evidence was ever presented in the case showing that the people who have signed up in Arizona without presenting proof of citizenship are, in fact, not eligible to vote.

Aaron Thacker, spokesman for Democratic Secretary of State Adrian Fontes, said there is evidence that the list of federal-only voters includes students attending state universities, many from within the state, who did not bring their birth certificates or other proof of citizenship with them but may have an interest in voting in this year’s high-profile federal and congressional races. He said the ability to sign up using the federal form gives them that option.

And Fontes, in his own statement, emphasized that those who are not yet registered but want to vote in  November still have the ability to sign up with the federal form. He even provides a link to that form on his agency’s website.

Since 2004, Arizona has required proof of citizenship to vote in state and local elections.

But that has bumped up against the National Voter Registration Act. It requires that states “accept and use” the form designed by the Election Assistance Commission to let people register to vote in federal elections.

Even the U.S. Supreme Court, in a 2013 ruling authored by Justice Antonin Scalia, said Arizona cannot demand more than what is required on the federal form.

In 2022, however, lawmakers sought to pick a new fight.

Sen. Jake Hoffman, R-Queen Creek, conceded that the state has no control over people registering to vote in congressional races. That is because the U.S. Constitution allows Congress to control the time, place and manner of congressional races.

But Hoffman argued and he got Republican colleagues to agree that the state still has a role to play in who can vote for president.

He bases that on laws that allow each state to choose how to select its presidential electors. And, strictly speaking, when Arizonans cast a ballot, they are voting for a slate of electors pledged to a specific candidate, not for the candidate himself or herself.

That argument carried no water with U.S. District Court Judge Susan Bolton who, in a ruling last year, barred the state from restricting who can vote for president.

“The plain language of the National Voter Registration Act reflects an intent to regulate all elections for federal office, including for president or vice president,” she wrote. “And binding precedent indicates that Congress has the power to control registration for presidential elections.”

Similarly, Bolton said federal law preempts a requirement in the challenged statute that anyone who uses the federal form must provide documented proof of citizenship in order to vote by mail in any race for which they are eligible to vote. She said that’s not what the federal law says.

“Congress recorded that it enacted the National Voter Registration Act not just to establish procedures that will increase the number of eligible citizens who register to vote in elections for federal office, but also to make it possible for federal, state and local governments to implement this chapter in a manner that enhances the participation of eligible citizens as voters in elections for federal office,” Bolton said.

The latest Supreme Court order does not end the fight. It still gives state officials, the RNC and their allies the opportunity to ask the 9th Circuit Court of Appeals to overturn Bolton’s decision, something that would affect future elections.

Aside from the claims by the Republicans about non-citizens voting, the whole issue has other political overtones.

In their legal filings, the GOP challengers pointed out that Republicans make up about 34% of the state’s registered voters. But the latest figures from the Secretary of State’s Office show just 14.3% of these federal-only voters signed up as Republicans.

Another 27.4% are Democrats, with 53.6% listed as “party not designated” and the balance among minor parties.

And all that follows the fact that Trump lost to Joe Biden in Arizona in 2020 by 10,457 votes, far fewer than the number of federal-only voters.

 

 

2 lawsuits filed over new elections law

In this March 22, 2016 file photo, voters wait in line to cast their ballot in Arizona’s presidential primary election in Gilbert. (AP Photo/Matt York, File)...

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Settlement removes hurdles to voter registration

The state’s top election official has agreed to remove a series of hurdles now in the path of those who want to register to vote. In a consent degree published...

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