Nearly 100,000 Arizonans whom the state recently discovered have not provided proof of citizenship will still be able to vote on all races, at least this year, the Arizona Supreme Court ruled.
In an order late Friday, the justices rejected claims put forward by Republican Maricopa County Recorder Stephen Richer that he and other county election officials cannot let those where there is no such proof vote for candidates for statewide, legislative or local offices, or for the various ballot measures. Richer said to do so would violate a 2004 voter-approved state law requiring “documented proof of citizenship’’ to vote in anything other than federal elections for president and Congress.
Chief Justice Ann Scott Timmer, writing for the court, did not dispute the terms of that law.
But she said she and her colleagues could find no authority for any county election official to summarily limit the right of anyone already registered to vote for all eligible candidates.
Timmer also cited findings by state election officials that “most of the affected voters likely are citizens.”
Timmer
The problem was caused by “a state administrative failure’’ that incorrectly told election officials proof of citizenship had been provided when no one had asked for it, she wrote.
Moreover, the court said state law spells out that when a county recorder finds someone is not a citizen, there is a process to remove that person from the voter rolls. That process provides an opportunity for the person to respond, Timmer said.
“A county recorder can therefore proceed with respect to individual voters under (that law) as long as the provision’s due process requirements are followed,’’ she wrote.
“Regardless, we are unwilling on these facts to disenfranchise voters en masse from participating in state contests,’’ Timmer continued. “Doing so is not authorized by state law and would violate principles of due process.’’
Richer thanked the Supreme Court on his social media page “for your extremely quick and professional review of this matter.’’
He confirmed what had been clear from the beginning: This was a “friendly lawsuit’’ he filed, knowing that Democratic Secretary of State Adrian Fontes would purposely take the opposing viewpoint.
That was designed to get a quick resolution of the question, especially with the first early ballots set to be mailed Friday. Richer thanked Fontes “for your partnership on this.’’
The winners, for the moment, are the 97,928 registered voters for whom Fontes said there is no proof of citizenship on file.
“Today marks a significant victory for those whose fundamental right to vote was under scrutiny,’’ Fontes said in a prepared statement. “The court faced a stark choice: to allow voters to participate in just a few federal races on a limited ballot, or to make their voices heard across hundreds of decisions on a full ballot that includes a variety of local and state offices.’’
As the justices acknowledged, that lack of citizenship proof was not the fault of the affected voters.
Here’s how the problem unfolded: The 2004 law spelled out that only those who provided such proof can register to vote. But to simplify matters, lawmakers decided that those who obtained an Arizona driver’s license after Oct. 1, 1996 would be presumed to be citizens. That was the effective date of a law requiring anyone obtaining a license to provide proof of legal presence in this country.
Everyone with older licenses essentially was grandfathered in, with no need to come up with citizenship proof unless they were new registrants after the 2004 law took effect or changed their registration.
In those cases, county officials inquired of the Motor Vehicle Division database whether the applicants had a post-1996 license with its presumption of citizenship.
MVD, however, responded by looking not at the date of the original license being issued but instead at the date of the most recent change, such as issuing a duplicate license or recording a change of address. And if that was after 1996, county officials had what they thought was the proof of citizenship they needed — even though the individuals at no point had provided it.
Richer said his staff discovered the glitch earlier this month, coming across a registration that had been marked as complying with the citizenship-proof requirement that had not. In fact, he said, that person was not a citizen, though he said they never actually tried to vote.
That sent Fontes to scour the records, where staffers found the nearly 100,000 who are in the same position: on the rolls as having provided citizenship proof that they never did.
With the earliest ballots set to go out Friday, Richer agreed to ask the Arizona Supreme Court to allow him to send these voters ballots with only federal races on them. That’s because federal courts have ruled that states cannot impose their proof-of-citizenship requirements on races for president, U.S. Senate or U.S. House.
Richer said for him to allow those without the proof on record to vote in all races would violate the 2004 law, something he is not authorized to do.
Fontes, in turn, told the justices it would be wrong to lock out all those people from voting in state and local races.
He and Richer jointly told the court that “most of the affected voters likely are citizens.’’
“All of the affected voters have attested under penalty of perjury to being United States citizens and have no reason to believe they needed to provide additional documentation to election officials,’’ Fontes and Richer agreed. And they said “it is possible’’ that the voters have, at some point, provided satisfactory evidence of citizenship.
But Timmer said that, for the court, the bottom line came down to the fact that no one has provided any legal argument to show that county recorders have the authority to do what Richer proposed: summarily remove these nearly 100,000 people from the state voter rolls, leaving them to vote only on federal races.
“That is particularly true under the present facts, where a state administrative failure permitted the affected voters to be registered without confirming that they provided documentary proof of citizenship when they received their driver’s licenses and where there is so little time remaining before the beginning of the 2024 general election,’’ Timmer wrote.
The order, however, affects only this election.
“Following the general election, election officials will reach out to voters requiring proof of citizenship updates to their records,’’ according to a statement released from Fontes’ office.
Democratic Gov. Katie Hobbs said MVD, which is under her control, has fixed the problem so there will not be any future false reports of citizenship proof.
Friday’s ruling also is a victory for the Arizona Republican Party, which filed its own legal brief asking the justices to side with Fontes and allow all those affected to cast a ballot, at least this year.
The GOP, however, may have had a narrower interest in that outcome: Of the affected voters, 37% who would have lost the right to vote in the upcoming state and local elections are Republicans, versus 27% who are Democrats. And in some close legislative races this year, eliminating those votes could make a difference.
Arizona Supreme Court justices
