Arizona GOP asks judge to toss state law for certain overseas voters

PHOENIX — An attorney for the Arizona Republican Party is asking a judge to void a 20-year-old law that allows some people who never have lived in the state to vote in elections.

At a hearing Monday, Kory Langhofer did not dispute that the law was approved unanimously by the Republican-controlled Legislature. And he acknowledged that federal law, known as the Uniform Overseas Citizen Absentee Voting Act, clearly allows the state to permit Arizona residents who are out of the country to cast a ballot.

But Langhofer told Maricopa County Superior Court Judge Michael Herrod that lawmakers acted illegally when in 2005 they extended that right to the children of those Arizona residents living elsewhere — including those who never have set foot on Arizona soil.

The arguments seemed to gain a bit of traction with Herrod.

“So a child that this state has never had jurisdiction over could theoretically be able to vote when they become an adult because their parents are citizens of Arizona?’’ he asked.

“That’s what the statute says,’’ said Assistant Attorney General Karen Hartman-Tellez who is defending the law.

“Isn’t that illogical and nonsense?’’ he responded.

No, she insisted. That’s because their parents are citizens and Arizona residents, even while overseas, so are their children, regardless of where they were born, Hartman-Tellez said. And that connection, she said, is what gives them the right to vote.

Herrod, however, remained skeptical. He wanted to know whether there an age at which the “children’’ who were born elsewhere to Arizona parents lose their right to affect elections here.

“When does that connection end?’’ he asked.

“It doesn’t,’’ she said, at least not until their parents are no longer Arizona voters.

And Hartman-Tellez said whatever anyone might think about all that, there’s nothing illegal about it.

“These are essentially policy decision,’’ she said. “And the Legislature has the authority to make those policy decisions.’’

Langhofer, who also represents the Republican National Committee and Gina Swoboda, who chairs the state GOP, contends that’s not true. He wants Herrod to rule that the 2005 law runs afoul of provisions in the Arizona Constitution which he said constrains decisions that lawmakers make about exactly what constitutes residency.

And that, Langhofer said, makes it irrelevant that 37 other states may have similar laws.

But the case isn’t that clear cut. To get to make those arguments, Langhofer first has to prove to Herrod his clients have a legal right to sue.

That’s not absolute: In general, someone asking a court to void a statute has to show a particular harm.

Langhofer said he has two.

First, he argues, is that the law places Republicans at a competitive disadvantage.

It starts with the numbers.

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In Maricopa County, Langhofer said, 51.3% of UOCACA voters are Democrat, with 18.2% registered Republican, 26.5% with no party affiliation and 4% who are signed up with other parties.

By contrast, of the more than 2.6 million people registered to vote in the state’s largest county, 35.5% are Republicans versus 28.2% Democrats.

Overall, he figures there appear to be at least 12,615 UOCAVA voters statewide.

But Langhofer doesn’t know how many of them are children of Arizona residents, something he hopes to find out as the case proceeds — if the judge allows it.

The bottom line, Langhofer said, is the law on children of Arizonans voting — the one he is trying to get Herrod to strike down — puts Republicans at a disadvantage.

Hartman-Tellez told the judge the numbers are irrelevant, arguing that it’s not like the 2005 law — then one proposed by a GOP lawmaker and approved by a Republican majority — was set up to give an advantage to Democrats.

She pointed out that nothing in the statute tells those voters with which party to register. Nor does it preclude them from voting for whoever they want.

And Herrod himself was skeptical of the claim that any partisan effect — assuming there is one — gives the GOP the right to challenge the law.

“That’s not the purpose of the statute,’’ the judge said.

True, Langhofer said. But he said the purpose doesn’t matter.

“Just the fact that the government has illegally structured the environment in which you compete is enough to establish competitive injury,’’ he told the judge.

Langhofer has another theory.

He said having people on the voter registration rolls who shouldn’t be there — the essence of his claim that the 2005 law violates the Arizona Constitution — dilutes the votes of legitimate voters, making them “worth less by right than they should be.”

Hartman-Tellez, however, said assuming that there actually is vote dilution, any harm to any voter is “too attenuated’’ to give legal standing for Langhofer to sue on behalf of the GOP.

All that means Langhofer won’t get to make his claim that the 2005 law is unconstitutional unless and until the judge concludes that his clients have legal standing to challenge it.

That, in turn, left Herrod with a question for Hartman-Tellez: If the Republicans can’t sue, then just who can?

She said if there’s a legal right it belongs to the 15 county recorders. Hartman-Tellez said they would have to be the ones to ask a court to decide whether they are acting legally in registering the children of overseas voters.

Herrod did not say when he will rule on whether Langhofer’s challenge can continue.