By Howard Fischer
Mail | X: @azcapmedia

PHOENIX — A group that already is accusing counties of letting noncitizens register to vote now has gone to court to get a list of the nearly 220,000 individuals — one out of every 20 registered voters — who have been identified as not having provided proof of citizenship.

And it wants the names before early voting starts this coming week.
Secretary of State Adrian Fontes is balking, contending among other things that providing a list of those affected will lead to harassment of individuals who he has repeatedly said are virtually certain to actually be legally registered. The only issue, he said, has been a newly discovered glitch in the verification process for those who obtained state driver licenses prior to 1996.

Fontes already has an order from the Arizona Supreme Court saying all those affected are entitled to vote in the upcoming election. It is only later, ahead of future elections, that it will be necessary to ask them to provide proof of citizenship to comply with a 2004 voter-approved Arizona law.

But attorneys for Strong Communities Foundation of Arizona, which has been at the forefront of accusations of tainted voter rolls, says “no reasonable person” would have any good faith basis for concluding the purpose is to harass or intimidate votes. They contend there’s a different reason Fontes and his office are balking at complying with what they say is a legitimate request for public records.

“Apparently, insulating themselves from embarrassment is more important to the defendants than following the law,” wrote attorney James Rogers, senior counsel for American First Legal Foundation that has links to Republican interests.

“Over the last few weeks, the defendants have been forced to admit to staggering failures in their voter list maintenance procedures and to gross violations of their duties under Arizona’s Constitution and laws,” he continued. “The public has a right to know the full extent of their failures.”

The lawsuit is the latest twist in what has been a flurry of disclosures and accusations after Maricopa County Recorder Stephen Richer discovered last month there was a problem with the system set up to verify citizenship through Motor Vehicle Division records.

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

That 2004 law says 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 is 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 was a post-1996 license and, therefore, proof of citizenship had been provided.

There has been some 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.

In any event, the Supreme Court ruled it would be wrong to deny those affected the right to vote a full ballot as the problem was not the fault of the voters. The 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.

“We are unwilling on these facts to disenfranchise voters en masse from participating in state contests,” wrote Chief Justice Ann Scott Timmer. “Doing so is not authorized by state law and would violate principles of due process.”

The alternative would have been to allow those people to vote only for president and members of Congress as federal law does not require citizenship proof for those races.

Fontes has said the list is still being compiled and verified. In fact, the numbers have bounced around, from an initial estimate of 300,000 to about 98,000 and, at last count, 217,187.

But Strong Communities wants a full list of those affected — and now.
The “why” behind it is not stated in the lawsuit. Instead, it says only these are public records. And nothing in state law requires anyone seeking a record to provide a motive.

In a Sept. 24 letter, attorney Craig Morgan who represents the Secretary of State’s Office acknowledges the policy in Arizona is to permit inspection of public records.

“But that policy has its limits and must be tempered when necessary to protect Arizonans,” he wrote to Jennifer Wright, one of the attorneys for Strong Communities. “At times, the need to provide carefully vetted and correct information to protect Arizonans from harassment and undue turmoil outweighs the public’s desire for general access to public records.”

In this case, he said, the information sought is potentially unreliable and undergoing “rigorous evaluation and investigation.” The result, he said, would lead to chaos, confusion and harassment and create an “overwhelming administrative burden” on the agency just as it is preparing for the election.

Only after there is a final list of those actually affected will such records be available, Morgan said, and only after redacting personal identifying or otherwise confidential information.

But Morgan said Fontes’ fears of what might happen by releasing this so-far-unverified list are more specific.

“Bad actors will weaponize this unreliable information to harass and intimidate voters and election officials,” the attorney said. “Voters who are erroneously challenged and harassed, but who are actually eligible to vote, will refrain from voting for fear of repercussions.”

Morgan said the information will be provided “at the soonest available time.”

But he said that is not going to happen before the general election, at least in part because of the burden on and lack of resources for the Secretary of State’s Office.

Morgan repeated the fact the Supreme Court will allow all those affected to vote a full ballot ensures they “will not be disenfranchised due to what amounts to an unintentional technical glitch.”

The challengers, in filing suit, were not convinced.

“The defendants have failed to satisfy — and, indeed, cannot satisfy — their burden to show that fulfilling the request poses an unreasonable administrative burden,” their lawyers state.

“It is obvious they have compiled the necessary information,” the legal complaint continued. “Otherwise, they would not have been able to publicly announce the number of voters affected by their failures to perform proper list maintenance.”

The breakdown appears to be about 38% Republican, 27% Democrat and the balance as those registered with minor parties or unaffiliated. Fontes said that reflects the fact the glitch affects those 45 and older — those with the older licenses.

America First Legal was formed by former Donald Trump adviser Stephen Miller.

An aide to Fontes said his office had not yet been formally served with the lawsuit. No date has been set for a hearing.