PHOENIX — Arizona Secretary of State Adrian Fontes must turn over records he is required by law to have about his obligation to maintain accurate voter rolls, a federal judge ordered late Friday.
But U.S. District Court Judge Steven Logan refused to order Fontes to immediately strip 1.2 million voters from the state registration list as requested by Citizen AG which calls itself a voter education group. The judge said even if he had that right to alter voter registration rolls — and he said he doesn’t — the organization’s claim that many people who are on the list who shouldn’t be allowed to cast a ballot is, at this point “wholly speculative.’’
Attorney Alexander Kolodin, who represents Citizen AG, said the ruling is still a victory.
He said once the records are produced — the judge gave Fontes until Dec. 2 to comply — that will give his client a chance to prove the merits of its assertion of poorly maintained voter rolls. And that, said Kolodin, could provide the basis for a future challenge to the rolls, even if that can’t occur until after next week’s election.
“We are pleased that the court ordered the records the secretary has been unlawfully withholding released so that Citizen AG will have the documents it needs to ensure that Arizona’s voter rolls are cleaned up,’’ he told Capitol Media Services.
But Kolodin, a Republican state representative from Scottsdale, also took a political swat at Fontes, a Democrat.
“It is obviously difficult to prove a claim when the secretary has been withholding just those records which reveal the depths of his incompetence and malfeasance,’’ he said.
A spokesman for Fontes would not comment on the ruling but said that the office would comply.
At the heart of the lawsuit is the claim that there are ineligible people on the rolls.
Karen Hartman-Tellez, an assistant attorney general representing Fontes, told the judge at Friday’s hearing there is no evidence to back up the allegation. Still, she acknowledged that she cannot say for sure how many people may be registered to vote who either no longer live in Arizona or have died.
Whatever is the answer could turn on what is in those records.
Both state and federal law require election officials to send out notices when there is evidence that a registered voter has moved. At that point, that person is placed on the “inactive’’ list.
Adrian Fontes, Arizona secretary of state.
The individual can reactivate simply by showing up at a polling place with proof of identification and address. But if that person does not vote in two subsequent elections, he or she is removed entirely from the voter rolls.
Citizen AG contends that based on data it has, there are 1.2 million Arizonans who were placed on the inactive list after the 2022 election but have not been permanently removed. It argued that failure to do so diluted the votes of those legally entitled to cast ballots.
Logan said that claim is based on “uncertain intervening events’’ that ineligible voters are on the rolls, that they are afforded an opportunity to vote, that they did vote, and that nothing would be done to prevent it.
“The court finds this claim of possibilities too speculate to establish a concrete injury,’’ he wrote, something necessary for standing to file suit in federal court.
And the judge was not about to order Fontes to remove 1.2 million names from the inactive voter list.
He said that claim is based on numbers in other reports the state furnishes to the federal Elections Assistance Commission. But that, said Logan, is not enough.
“Plaintiffs do not have any independent data to support the claim that over 1.2 million inactive and ineligible voters remain on the Arizona voter rolls,’’ the judge wrote. What they have at this point, is “wholly speculative.’’
Anyway, he pointed out that the NVRA itself forbids the wholesale removal of individuals from voter rolls within 90 days of an election.
The records Citizen AG wants, however, are another matter.
At Friday’s hearing, Hartman-Tellez complained about the timing of all this. She told the judge Citizen AG could have sought the documents after the 2022 election but didn’t file a public records request until Oct. 4 — and didn’t go to court until this past Wednesday, less than a week before the election, after Fontes said he didn’t have what the organization wanted.
That didn’t impress Logan, who said there is a “clear statutory right to inspect certain records.’’ Nor was he swayed by arguments that it would be too much of a burden to force Fontes to produce them.
“That difficult has no bearing on Citizen AG’s right to receive the records, whether they had made such a request two years ago (on Nov. 9, 2022, when plaintiffs contend the state of Arizona should have cleaned up its voter rolls) or six days before the election,’’ he said. “The law is the law, even on the eve of an election.’’
The judge, however, agreed to give Fontes until Dec. 2 to comply.
