PHOENIX โ The Arizona Supreme Court is being asked to decide whether nearly 100,000 registered voters will be allowed to cast ballots in upcoming state and local elections.
A pair of lawsuits ask the justices to decide how the state and counties must deal with the fact there isnโt evidence โ due to a state accounting glitch โ that close to one out of every 45 registered voters provided the legally required โdocumented proof of citizenshipโโ. That makes them legally ineligible to vote a full ballot under terms of a state law that took effect Jan. 24, 2005.
Most are between ages 45 and 60 and the lionโs share are Republicans, officials said.
Maricopa County Recorder Stephen Richer filed the first lawsuit Tuesday. He wants the court to declare that unless the affected individuals provide citizenship proof, they will be able to vote this year only on federal races. Unlike Arizona law, federal statutes have no such proof-of-citizenship requirement to cast a ballot for president, U.S. Senate or U.S. House.
โI understand that these voters have done nothing wrong,โโ he said. But Richer, a Republican who was just defeated in the GOP primary for another term, said they do not fall into any existing exemptions. Without evidence of satisfactory proof of citizenship, they should not be allowed to vote on statewide, legislative and local candidates as well as on ballot propositions, he said.
But Democratic Secretary of State Adrian Fontes intends to file legal papers Wednesday proposing that they all be allowed to vote in all elections. He said there is no reason to believe that virtually all of these people, many of whom have been voting for years, are not citizens โ even if the paperwork is missing.
โI am unwilling to disenfranchise this many voters by limiting them, suddenly, and with little notice, to a federal-only ballot when none of them had actual notice of or blame for this issue,โโ he said.
Richer and Fontes do share a common goal: Get a clear decision from the Supreme Court โ perhaps by the end of the week.
Speed is crucial.
Overseas ballots are supposed to go out by Friday, and early ballots are due to be mailed Oct. 9.
The discovery
Whatโs behind the last-minute scramble is that a check of records by Richerโs office found that someone who was presumed registered to vote in all elections had never provided the โdocumented proof of citizenshipโโ required under the 2005 law.
Fontes said that discovery led his own agency to take a closer look at others on the voter rolls. His staff found something close to 98,000 who are in a similar situation, he said.
The secretary of state stressed the situation wasnโt intentional, saying many of these people have been voting for years โ and their ballots have been accepted โ under the premise they were in compliance with the law.
Still, it is likely to rekindle complaints by some who insist the stateโs election rolls are packed with people who are ineligible. Those include a federal court lawsuit by a conservative group accusing all 15 county recorders of failing to do their jobs to ensure that only citizens are voting.
โThis has already spurred new conspiracy theories about this election,โโ Fontes said Tuesday. โBut those conspiracy theories are just as good as all the other conspiracy theories are,โโ he said, calling any evidence that non-citizens are voting here or elsewhere โvanishingly rare.โโ
This issue starts with the 2005 voter-approved law that imposed the stateโs first-ever requirement for proof of citizenship to register. Thatโs a requirement that exists nowhere else in the country
That law also says anyone registering from that point forward who already had a driverโs license issued after Oct. 1, 1996 is presumed to be legally registered. Thatโs the effective date of a law signed by Republican then-Gov. Jan Brewer saying individuals needed to prove legal presence to get a license.
The same law essentially grandfathered in as presumed to be a citizen anyone whose license is older than that, without having to provide new citizenship proof.
Who is affected
The problem involves those who registered to vote after the 2005 effective date but whose driverโs licenses predate 1996.
As new registrants, they are supposed 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 normally triggers a check of Motor Vehicle Division records, Fontes said.
Richer said the problem is that some people who have pre-1996 licenses โ the ones without proof of citizenship โ have gone to MVD for a duplicate license or to change their address.
The MVD, however, put the date it issued the revised license into its database as the date the license was originally issued.
That meant the database reflected they have a post-1996 license โ meaning they had provided proof of citizenship โ when, in fact, they never had. County election officials, relying on those MVD records when facing someone trying to register to vote after 2004, never asked for any citizenship proof.
The problem only came to light earlier this month when Maricopa County was checking the citizenship of one person who had one of those older licenses who was updating his voter registration. It turned out that this person was a lawfully permanent resident โ entitled to an Arizona license under the 1996 law โ but not a citizen, with the issue being the 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. He thinks there are about 98,000 whose records reflect the lack of submission of documentary proof of citizenship.
โWe donโt have any reason to believe that anyone in this gap is not an eligible voter,โโ Fontes said.
โWe donโt have any reason to believe that theyโre not eligible citizens in spite of the fact that we did find one,โโ he continued. โAll we know is they fit into this category and all of this requires more research.โโ
But with time running out, the plan was hatched for the dual lawsuits to get a definitive decision as soon as possible from the Supreme Court as to whether they can cast a full ballot or only vote for federal candidates.
Whatโs next
For the moment, thereโs nothing those who think they are affected can do other than wait.
Fontes said if the justices conclude they are entitled to vote only in federal races, there will be an outreach effort to let them know. There also are plans to set up a website where individuals can upload legally required proof of citizenship such as copies of a birth certificate, passport, naturalization documents or tribal enrollment cards.
Those same documents can be presented right through 7 p.m. on Election Day.
None of that satisfied Merissa Hamilton, co-founder of Strong Communities Foundation, the group that filed the lawsuit against all county recorders contending they are not doing what is required to purge their voter rolls of non-citizens. She took a swat at Richer for failing to be proactive once he learned of the problem last week.
โHe should also send out letters,โโ Hamilton said. โThatโs irresponsible.โโ
But Fontes said it would be premature of any recorder to do that ahead of a Supreme Court ruling.
Not everyone with a pre-1996 license falls into this questionable category, regardless of whether they updated or changed their voter registration.
Fontes said many people who already had a pre-1996 license have since applied for a Real ID. That is an enhanced driverโs license that, among other things, will be required starting next year to board a commercial aircraft.
More to the point, an applicant for a Real ID has to provide proof of citizenship such as a passport, meaning they are โ and remain โ 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 there has to be finality to elections.
He said that, given this largely affects those who first registered before 1996, most of those affected are in the 45- to 60-year age range. He also said that demographic is far more likely to be Republican.
15% from Pima County
A court ruling limiting them to a federal-only ballot could have an effect on closely contested legislative races.
Fontesโ office also says about 55% of those affected are from Maricopa County, with 15% from Pima County, close to 9% from Pinal County, about 5% from Yavapai County and the remainder in proportion to the remaining counties.
Democratic Gov. Katie Hobbs said she has fixed what she called an โadministrative errorโโ dating back to 2004.
โAs soon as I became aware of the problem, I directed MVD to aggressively develop and implement a solution,โโ she said Monday night in a written statement. Hobbs also said she โwill be implementing an independent audit to ensure that MVD systems are functioning as necessary to support voter registration.โโ
All of this is occurring as some Republicans on the state and national levels, without citing proof, contend that people who are not citizens are affecting federal elections. They are pushing for Congress to approve a national law to require proof of citizenship to vote in federal elections.
