PHOENIX — Secretary of State Adrian Fontes was ordered Thursday to turn over the initial list of 98,000 names of registered Arizona voters who may not have provided proof of citizenship. He must do so by noon Monday, the day before the election.
In a strongly worded order, Maricopa County Superior Court Judge Scott Blaney said the information, sought by the group Stronger Communities Foundation, is a public record and subject to disclosure.
Fontes did not dispute that contention. But he argued he was entitled to withhold the names because there is an exception to the Public Records Law in cases where release would not be in the “best interests of the state.’’
Saying he was concerned the named voters would be harassed, he said he would withhold information if that “could save just one life.’’ “I don’t want blood on my hands,’’ he said.
The judge was not convinced, saying there was a “lack of any evidence that any individual life was in danger.’’
Blaney also said that neither Fontes nor his office provided any evidence that Stronger Communities has used information to harass or intimidate voters, conduct mass voter challenges, or single out voting locations to harass voters.
Still, acknowledging possible threats, the judge forbade Stronger Communities from using the list to contact any of the affected voters until after Tuesday’s election. He also said that until Nov. 6 the organization can release that list only to county recorders, the Arizona Senate president, the speaker of the state House, and members of the Elections committees of the House and Senate.
Adrian Fontes, Arizona secretary of state.
The judge said Fontes provided “inconsistent testimony’’ on exactly how many people are affected by a “glitch’’ in the system used by the Motor Vehicle Division that resulted in questions of whether some people on the current voter rolls did not provide legally required proof of citizenship.
Still, Blaney acknowledged Fontes’ concern that there may not yet be a complete list, with estimates of those affected at one point during the trial earlier this week going as high as 345,000.
So he ordered Fontes to release by Monday the initial list of 98,000, which the secretary finally conceded he does have.
An aide to Fontes said he was studying the order “and weighting our options as to how to move forward.’’
Thursday’s ruling is a victory for Stronger Communities, which says it uses information from voter records to do outreach.
Merissa Hamilton, who chairs the organization, acknowledged that not getting the list until Monday means little could be done ahead of the election the following day to determine if there are people on the list who are not citizens. There’s also the fact that more than 2 million Arizonans already cast early ballots.
Hamilton told Capitol Media Services this has never been about trying to block the 98,000 — or however many end up on the final list — from voting this year.
“The super majority of the list are probably citizens,’’ she said. “But those that aren’t — if that exists in this situation — now have fair warning they will get caught if they try to break our laws.’’
A 2004 voter-approved law requires proof of citizenship to register. A separate 1996 law requires proof of legal presence to get an Arizona driver’s license. Because of that prior law, the 2004 law said anyone who had a driver’s license issued since October 1996 was presumed to already have provided that proof.
Those with pre-1996 licenses, however, were required to furnish such proof if they were registering to vote for the first time or if they had moved to another county.
The problem was that the Motor Vehicle Division was telling counties that some of these people had post-1996 licenses. That’s because its reports listed the last date of any activity, such as a change of address or a duplicate license, rather than the original issue date.
Bottom line was that counties, using this mistaken information, registered people who had not been asked to provide the legally required proof.
By law, anyone without such proof can vote only on races for president and Congress, as federal law does not require citizenship proof.
But the Arizona Supreme Court ruled anyone on the list can vote on any race on the ballot this year, concluding there was no hard evidence anyone on the list is not a citizen. the justices said they would rather not err on the side of disenfranchising voters, most of whom they believe are citizens, so close to the election over a record-keeping problem.
Fontes initially told the Supreme Court there were 98,000 on the list. His most recent press statement put the figure at about 218,000.
That resulted in Stronger Communities seeking the list. The group did not cite a reason; one is not required under the Public Records Law. When Fontes refused, it sued.
In his ruling, Blaney pointed out the group has obtained, under public records law, a separate list of about 42,000 “federal only’’ voters. These are people who clearly have not provided the state-required documentary proof of citizenship, meaning they can vote only in the presidential and congressional races.
Blaney said Stronger Community “has not been implicated in any violations in the privacy of confidentiality rights of those voters.’’
The group “provided unrebutted specific, credible evidence that it carefully vets and trains members, encourages a friendly environment, and has been a good steward of private information, including the federal only voter list at its disposal,’’ the judge wrote.
He took a particular swat at Fontes for his claim he can withhold the information if it would save just a life.
“If the court were to adopt this standard — that a public official may withhold public records whenever he subjectively believes such withholding could somehow ‘save even one life’ — the court would be adopting an impermissibly broad, arbitrary standard where the ‘best interest of the state’ exception swallows the entirely of the Arizona Public Records law,’’ Blaney wrote.
