PHOENIX — A federal appeals court has tossed out the claim of two Republicans active in the party that there are at least 500,000 — and possibly 1.27 million — people on voter registration rolls who shouldn't be there.
In a new ruling, a three-judge panel of the 9th Circuit Court of Appeals pointed out that Scot Mussi and Steven Gaynor have no proof that there are ineligible people on the rolls.
Instead, they simply contend that Secretary of State Adrian Fontes has not conducted voter roll maintenance as required by law. And they want a court order compelling him to do so.
But the judges took just five pages to dismiss the case, saying that the pair had no legal basis to file suit in the first place.
The judges said while the pair alleged there were "known cases of voter fraud'' in Arizona, they never explained how any of those claims were the result of inadequate list maintenance — or even how they were affected by it.
Instead, the court said the plaintiffs argued that they would be injured because there was a "substantial risk'' of harm because ineligible voters might vote in the future. But the judges called that "entirely hypothetical.''
The case involves claims by Mussi, president of the Republican-aligned Free Enterprise Club, and Gaynor, an unsuccessful Republican candidate for secretary of state in 2018 who was briefly in the 2022 gubernatorial race before withdrawing.
Dallin Holt, their attorney, cited requirement in federal law that the state has a program to make a "reasonable effort to remove the names of ineligible voters from the official list.'' That requirement specifically includes those who have died and those who have moved.
Holt argued that an analysis of data from the U.S. Census Bureau finds several counties have voter registration rates that are "implausibly high,'' arguing that there could be up to 1.27 million registered voters who are deceased or no longer live in the state.
Separately, Holt said more than 750,000 notices were sent out in Maricopa to voters to determine if they still live where they were registered.
In the case of about 620,000, he said, there is no record of what happened or whether they were removed.
That, Holt argued, means there are some 500,000 unaccounted-for registered voters remaining on the rolls primarily attributable to voters who voted or voters who failed to respond — both methods which he said are supposed to be used to maintain and update the rolls.
Holt acknowledged he did not have evidence of specific people who are on the rolls — which are public — who actually are dead or have moved.
But he said that's not necessary for him to argue that Fontes is not doing what the federal law requires. That, said Holt, is proven by what he said is the disparity between the Census data and the voter rolls.
"It's clear that the secretary doesn't have a process in place to do this,'' he said. Holt said that data was enough to get his clients their day in court.
The appellate judges disagreed.
They said anyone filing a lawsuit like this must, at a minimum, allege facts that demonstration an invasion of a legally protected interest which is both concrete and "actual or imminent, not conjectural or hypothetical.''
What Mussi and Gaynor were claiming is that inadequate voter roll maintenance offers ineligible voters "an opportunity to vote in Arizona elections, risking the dilution of plaintiffs' legitimate votes.''
But the court said that feared injury would occur only if three things occurred:
• An ineligible voter requests an early ballot or personally goes to a polling place;
• That person casts a ballot;
• That ineligible ballot is tabulated.
And the judges said that, if voting occurred in person, there would have to be proof of identity that reasonably appears to be the same name and address on the precinct register.
All that, the appellate court said, shows only an "attenuated chain of inferences,'' insufficient for Mussi and Gaynor to establish the legally required "substantial risk'' of harm.
The judges were no more receptive to the argument by the pair that they are entitled to sue based on their loss of confidence in the integrity of Arizona elections.
"Plaintiffs may not manufacture standing merely ... based on their fears of hypothetical future harm that is not certainly impending,'' the court concluded.
Gina Swoboda, who at the time was the chair of the Arizona Republican Party, told Capitol Media Services she was not surprised by the ruling.
Swoboda actually had been part of the original lawsuit, which had been dismissed in 2024 by a trial judge.
But she said the case was so weak and flawed — including relying on what she called unreliable evidence from a poorly conducted 2020 census — that she refused to pursue the appeal. That left only Mussi and Gaynor as plaintiffs. Neither immediately responded to messages seeking comment.
Swoboda is currently a Republican contender for secretary of state. The winner of the primary between her and state Rep. Alexander Kolodin will face off against Fontes in November.
