GOP lawmakers side with Democrat Fontes on voter eligibility

The state’s top two elected Republicans are siding with Democratic Secretary of State Adrian Fontes that nearly 100,000 Arizonans who haven’t provided proof of citizenship should be able to vote on all candidates — at least this year.

In new filings Wednesday at the Arizona Supreme Court, House Speaker Ben Toma and Senate President Warren Petersen acknowledge that a voter-approved law says those for whom there is no such evidence are not entitled to vote for candidates for state, legislative or local office, or for or against ballot measures. And they do not dispute the findings of Fontes that such proof is missing for the individuals at issue.

But their attorney Thomas Basile said the error was not the fault of any of the voters at issue, more of whom are Republicans than Democrats, although he didn’t mention that partisan differential. He is telling the justices the voters have been “affirmatively induced by government officials to believe they were qualified, full-ballot voters.’’

Under normal circumstances, Basile said, the affected voters would be provided written notice of the missing documentation, instructions for resolving it, and a postage-prepaid and preaddressed envelope in which to submit it. They would have 35 days to respond.

But Basile said that isn’t an option here, since early ballots start to go out this week and the problem was just discovered.

So, on behalf of Toma and Petersen, he wants the justices to rule that all of the affected voters should be issued full ballots for the Nov. 5 general election.

That position puts the two GOP lawmakers at odds with Republican Stephen Richer, the Maricopa County recorder. He is asking the justices to rule that, absent the proof of citizenship, he has no legal authority to send full ballots to the affected voters.

Richer said affected voters should get a ballot with only federal races. That’s because federal law has no such requirement to prove citizenship to vote for president and members of Congress.

Fontes, in his own legal filings, urged the justices to allow everyone already registered to vote a full ballot. In fact, he told the justices, they have no authority to direct elected officials in the state’s 15 counties to re-register all these people as federal-only voters as Richer proposes.

Richer is not upset with the GOP lawmakers for weighing in, even if they do not back his legal position, said his press aide, Taylor Kinnerup.

He pointed out the legal fight playing out before the state’s high court is a “friendly lawsuit’’ designed to get the issue resolved, and soon.

“The recorder and the secretary are seeking clarity from the court and hoping for a swift, decisive resolution,’’ Kinnerup wrote.

Both Toma and Petersen have filed other lawsuits saying those who have not provided “documented proof of citizenship’’ should not even be able to vote for president. They argued that dilutes the votes of those who have shown they are citizens.

That argument was rejected by the U.S. Supreme Court.

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But this situation, said Basile, is different. That starts with the fact all of the affected voters have assumed for years they are entitled to vote in all races, he said.

The issue before the court starts with a 1996 law that says anyone who wants a driver’s license must provide proof of legal presence. That includes not just citizens but permanent legal presence.

In 2004 Arizona voters approved a requirement to prove citizenship to register and vote. But to keep enforcement simple, the law was written so that anyone who has a license issued after 1996 is presumed to meet that burden; others with older licenses would need to bring in separate proof.

The result is that after 2004 all new and updated voter registrations, including those involving moves to another county, have been checked against the database of the Motor Vehicle Division.

It turns out, though, that if someone came in for a duplicate or updated license, MVD would use that date as the date of the license — even if the original license was issued prior to 1996 before proof of citizenship was required. That, in turn, failed to flag the registrations of 97,928 people who were not asked for and did not provide proof of citizenship.

The glitch wasn’t discovered until earlier this month.

Fontes said the majority of affected voters are in the 45-60 age group. And more than 37% of them are Republicans, versus nearly 27.5% who are Democrats.

So denying them ballots for statewide, legislative and local elections would have a greater effect on GOP candidates. Ditto ballot measures supported or opposed by Republicans.

Bastile wrote, “There is no affirmative indication that any of the affected voters actually are non-citizens.” Doing what Richer wants — letting them vote only on federal races — would disenfranchise them, he said.

After the general election, all the affected voters could be notified and given the time to produce the documents, he said.

The justices have indicated they will consider the conflicting arguments from Fontes and Richer by the end of the week.

There is, however, no legal requirement for the court to decide who is right, which could leave election officials no guidance on what to do.