PHOENIX — A lawyer for Secretary of State Adrian Fontes told a federal judge Friday there is no evidence backing a Florida group’s claim there are 1.2 million people who don’t belong on Arizona voter registration rolls — much less that any of them are voting.
But Assistant Attorney General Karen Hartman-Tellez conceded that the group, Citizen AG, probably is entitled to certain records they’re seeking about what Fontes is doing to keep the voter rolls up to date, removing those who have moved or died. She said, though, the failure to produce the records may be due to a “miscommunication’’ between the group and the Secretary of State’s Office about what information was being sought and what is in the office’s hands.
Still, as of Friday, Citizen AG’s attorney Alexander Kolodin said no records have been produced. And he told U.S. District Court Judge Steven Logan that the only way his client can prove its case — and he insisted that some numbers it already has back up the 1.2 million claim — is to force Fontes to surrender records he’s required to keep under the National Voter Registration Act.
That will provide the basis for a requested order for Fontes to purge the rolls of those Citizen AG thinks should not be there, Kolodin said.
Fontes’ attorney, Hartman-Tellez, acknowledged that federal law does require the secretary to compile records of those who legally must be removed from voter rolls.
The judge, however, also was concerned that Citizen AG didn’t even ask for the records until Oct. 4. And the group took until Wednesday — six days before the election — to file suit.
Logan also noted that Citizen AG has filed only one similar lawsuit, that one in Pennsylvania. He questioned whether the group was targeting only “swing’’ states where the race for president could go either way. He got Nicole Pearson, a staff attorney for the organization, to acknowledge that filing suit here was not exactly random.
“We are only pursing the lawsuit where we have seen very serious and very egregious violations of the law,’’ she told the judge.
Regardless of what Logan rules, the complaint against Fontes about ineligible voters on the rolls is likely to play a role in what lawsuits are filed after Nov. 5.
In court, Pearson linked this legal fight over the records to whether voters accept the results of elections.
“People are discouraged by what they believe are inconsistencies,’’ she told the judge. “They feel their vote doesn’t matter. It’s about accountability. It’s about transparency.’’
For Logan, however, the question most immediately turns on Fontes’ legal obligations and whether he has complied with them.
The lawsuit by Citizen AG has two main parts.
One is production of records about people who should have been removed from the rolls.
Under federal law, if there is evidence someone has moved or died, a forward-able notice is supposed to go out to the last known address to find out if that person is still eligible.
In the meantime, he or she is put into a list of “inactive’’ voters. Still, anyone on that list can cast a ballot by providing proof of residency.
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.
The second part of the lawsuit is a request that Logan order Fontes to immediate remove, or direct county election officials to remove, from the voter rolls anyone who did not respond to the confirmation notice and did not vote in either of the last two elections.
Hartman-Tellez said the county recorders are the ones who do the maintenance activities. Under questioning from the judge, she conceded she does not know if Fontes asked the counties for that information after getting the public records request.
“This is information the public deserves to know before the final opportunity to vote is gone,’’ Kolodin said.
Hartman-Tellez, however, said even if Fontes should have found a way to produce the records sought, there is no way to do that within the short time. When asked by the judge to tell him how many people are on the rolls and should not be, she responded, “I can’t give you a number.’’
All that left Logan clearly frustrated.
There’s another timing issue. Hartman-Tellez pointed out that early voting started Oct. 9.
She also told the judge that about 2 million people — half of those on the active voter registration list — already have cast their ballots. Once the signatures on the return envelopes are verified, the ballots are separated, meaning there is no way to actually ferret out any votes cast by someone who should not be voting, even assuming that is the case.
The judge promised a quick ruling but did not set a deadline for himself.
Get your morning recap of today's local news and read the full stories here: tucne.ws/morning
