PHOENIX — Secretary of State Adrian Fontes’ attorney told a judge Tuesday that if he makes public the names of 218,000 voters who may not have proven citizenship ahead of Election Day it will lead to voter intimidation.
Craig Morgan said he does not doubt that the the final list of names — and he said there really isn’t a fully vetted list yet — will be a public record. That means Strong Communities Arizona, which filed suit to get the names, eventually will get them, he told Maricopa County Superior Court Judge Scott Blaney.
But Morgan said there are reasons not to force Fontes to produce the list right now, before the election, contending Strong Communities “or people affiliated with it’’ will abuse it.
“I’ll have video evidence to show you of at least one instance where people show up at these folk’s doors pretending to be from my client’s office or similar government agencies, saying ‘You need to prove to us that you can vote,’ ‘’ he said. “That is something we believe mitigates against the right to inspection of imperfect information.’’
Attorney James Rogers, from the Republican-linked America First Legal Foundation that is representing Strong Communities, said that “insinuation’’ by Morgan is unfounded.
Secretary of State Adrian Fontes
“Our client does voter outreach all the time,’’ and reached a million voters this year, he said.
“Never been a single complaint,’’ Rogers told Blaney. “Our client and none of our client’s volunteers have ever done the kind of things that he’s talking, as far as we’re aware.’’
Rogers said there’s a legitimate purpose to make the information public — and now.
“Voter confidence in the integrity of our elections is low because almost every election there’s some major problem,’’ he said.
Rogers said he believes that “most, if not the vast majority’’ on that list are citizens and entitled to vote.
“But it’s not the secretary’s right to hold that list to tell us if there’s a problem and not let anyone see it or do any outside vetting on it,’’ he said.
Record-keeping issue
The backstory is that election officials recently learned about a glitch in record-keeping.
The Motor Vehicle Division’s records show if someone registered to vote after 1996, the year state law first required proof of legal presence to get a driver’s license.
In 2004, Arizona voters approved a law requiring proof of citizenship to register and vote. That law was worded to presume that anyone in MVD records as having a post-1996 license had provided such proof and therefore didn’t need to show it again when either registering to vote for the first time or changing registration.
But it turns out there was a flaw in that plan: MVD included in that list of presumed citizens provided to county election officials anyone who had updated a driver’s license after 1996, even if the original license was issued before that date. And using that information, election officials presumed those individuals had proven citizenship even though there were no such documents filed.
Strong Communities wants the list, which Fontes said totals about 218,000 statewide, before the Nov. 5 election.
Morgan said there’s no reason for that.
He pointed out that the Arizona Supreme Court, confronted last month by the possibility of disenfranchising otherwise eligible voters, ruled that all 218,000 — or whatever the final number proves to be — can vote this year on all races.
The alternative was to allow them to vote only for presidential or congressional candidates, as the National Voter Registration Act permits that without providing proof of citizenship.
But the justices appeared convinced the odds of noncitizens on the list are low, especially as they all had Arizona licenses issued in Arizona before October 1996.
“We aren’t going to be purging any voter rolls between now and the election because these voters get to vote,’’ Morgan told Blaney, referring to that Supreme Court order. It is only after this election that the justices said officials must determine who needs to provide citizenship proof for future elections.
The attorney for Democrat Fontes said there’s a reason Stronger Communities, which tends to align itself with Republican interests, wants the list right now.
“And I think that’s revealing because they’d sure love to deprive these people of the right the Supreme Court’s already told them they could exercise later on this month,’’ Morgan said. “So we are not in a hurry. And we shouldn’t be.’’
If that argument doesn’t convince Blaney to dismiss the case, Morgan has another. He said the Secretary of State’s Office currently has no list that meets the demands of Stronger Communities.
Fontes is “in the process of working with the other stakeholders to make that list,’’ Morgan told the judge. All he has is a list from MVD of people “that could be subject to this glitch,” he said.
Judge’s reactions so far
Blaney appeared unpersuaded. “Couldn’t they just disclose who they base that on?’’ he asked.
The judge noted something else.
It was Fontes who issued a news release identifying the problem and coming up with a specific figure. Blaney said the news release with a specific number suggests Fontes has at least a preliminary list of who is affected.
Morgan said the release from Fontes is legally irrelevant. “He put out a press release saying, ‘This is the information we have,’” he responded.
Morgan said that list is still being vetted and the plan is to release a list only when it is clear it contains only the names of those who fall into the gap: having a pre-1996 license, a post-1996 change on the license, and a registration after the 2004 law took effect.
Fontes may use other tools to try to narrow the list before it is made public, Morgan said, such as asking the Arizona Department of Health Services if it has birth certificates for anyone on that list. That would eliminate the need for the individuals to dig up proof of citizenship to vote in future elections.
“So it’s not fair to say he has identified 218,000 people that have to provide documentary proof of citizenship,’’ Morgan said. “It just hasn’t happened.’’
Still, Blaney questioned why Fontes can’t release names as the final verification is done.
Yet to be decided is whether there will be a court hearing. Strong Communities is looking for a decision by Oct. 25.
The judge did not schedule one on Tuesday, and Rogers said one is not necessary.
But Morgan said he wants to present witnesses to tell the judge that while voter registration records are public, the release of this list at this time falls within the exceptions to the state’s Public Records Law. Exceptions include privacy interests or a more generic exception when disclosure can be denied “in the best interests of the state.’’
There is also the likelihood that whoever loses will seek Supreme Court review, further delaying final resolution.
The breakdown of those on the list provided so far by Fontes appears to be about 38% Republicans, 27% Democrats, and the balance registered with minor parties or unaffiliated. Fontes said that reflects the fact that the glitch affects those 45 and older — those with the older licenses.
