Nearly 100,000 Arizonans who 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 has ruled.
In an order late Friday, the justices rejected claims put forward by Maricopa County Recorder Stephen Richer that he and other county election officials cannot let the affected voters cast ballots 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 law requiring “documented proof of citizenship” to vote in anything other than federal elections.
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 actually limit the right of anyone already registered to vote for all eligible candidates.
Timmer also also there was no evidence that most of those affected are not citizens. Instead, the problem was caused by “a state administrative failure” which had incorrectly told election officials that proof of citizenship had been provided when no one had ever asked for it before.
The court also said state law spells out that when a county recorder finds that someone is not a citizen, there is a process to remove that person from the voter rolls. Timmer said that process provides an opportunity for the person to respond.
“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 did not appear to be broken up by losing the legal arguments, thanking the Supreme Court on his social media page “for your extremely quick and professional review of this matter.”
In fact, Richer confirmed what had been clear from the beginning: This was a “friendly lawsuit” he filed, knowing that 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.
The winners, for the moment, are the 97,928 individuals who 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.”
And, as the justices acknowledged, that lack of that proof was not the fault of the affected voters.
At the heart of the problem is that 2004 law spelling out that only those who have 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. And it is in those situations that the issue arose.
In those cases, county officials inquired of the Motor Vehicle Division database to see if 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, like issuing a duplicate license or 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 but had not. In fact, he said, that person actually was not a citizen, though he said that person never actually had tried to vote.
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 or members of Congress.
But the court sided with Fontes, who argued it was too close to the November election to make changes to the voter rolls.
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 had 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.
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 were Republican, versus 27% who were Democrats. And in some close legislative races this year, eliminating those votes could make a difference.
