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Republican activists sue for names of Arizonans affected by voter registration glitch

Adrian Fontes
Gage Skidmore/CC BY 2.0
Adrian Fontes

A group that already is accusing counties of letting noncitizens register to vote now has gone to court to get a list of the nearly 220,000 individuals — one of every 20 registered voters — who have been identified as not having provided proof of citizenship.

And it wants the names before early voting starts this coming week.

Secretary of State Adrian Fontes is balking, contending among other things that providing a list of those affected will lead to harassment of the individuals who he has repeatedly said are virtually certain to actually be legally registered. The only issue, he said, has been a newly discovered glitch in the verification process for those who obtained state driver's licenses prior to 1996.

And Fontes already has an order from the Arizona Supreme Court saying all those affected are entitled to vote in the upcoming election. It is only later, ahead of future elections, that it will be necessary to ask them to provide proof of citizenship to comply with a 2004 voter-approved Arizona law.

But attorneys for Strong Communities Foundation of Arizona, which has been at the forefront of accusations of tainted voter rolls, says “no reasonable person” would have any good faith basis for concluding that the purpose is to harass or intimidate voters. And they contend that there's a different reason Fontes and his office won’t comply with what they say is a legitimate request for public records.

“Apparently, insulating themselves from embarrassment is more important to the defendants than following the law,” wrote attorney James Rogers. He is the senior counsel for American First Legal Foundation, which was founded by Stephen Miller, who was an adviser to former Republican President Donald Trump.

The lawsuit is the latest twist in what has been a flurry of disclosures and accusations after Maricopa County Recorder Stephen Richer discovered last month that there was a problem with the system set up to verify citizenship through Motor Vehicle Division records, leading to the discovery that, at last count, nearly 218,000 registered voters did not provide the proof of citizenship required by the 2004 law.

There has been some finger pointing over who is at fault for the flaw, which has been in place for decades, with election officials blaming it on MVD and an aide to Gov. Katie Hobbs saying it is the fault of how the counties were making the inquiry.

In any event, the Supreme Court ruled that it would be wrong to deny those affected the right to vote a full ballot as the problem was not the fault of the voters. And the justices said it would be improper to try to remove them from the rolls so close to the election when they would have little time to dig up and provide citizenship proof and be entitled to "due process'' before their voting rights could be curtailed.

The alternative would have been to allow those people to vote only for president and members of Congress as federal law does not require citizenship proof for those races.

Fontes has said the list of affected voters is still being compiled and verified.

But Strong Communities wants a full list — and now.

The “why” behind it is not stated in the lawsuit.

Instead, it says only that these are public records. And nothing in state law requires anyone seeking a record to provide a motive.

In a Sept. 24 letter attorney Craig Morgan who represents the Secretary of State's Office acknowledges that the policy in Arizona is to permit inspection of public records.

“But that policy has its limits and must be tempered when necessary to protect Arizonans,” he wrote to Jennifer Wright, one of the attorneys for Strong Communities. “At times, the need to provide carefully vetted and correct information to protect Arizonans from harassment and undue turmoil outweighs the public's desire for general access to public records.”

In this case, he said, the information sought is potentially unreliable and undergoing “rigorous evaluation and investigation.”

Only after there is a final list of those actually affected will such records be available, Morgan said, and only after redacting personal identifying or otherwise confidential information.

But Morgan said that Fontes' fears of what might happen by releasing this so-far-unverified list are more specific.

“Bad actors will weaponize this unreliable information to harass and intimidate voters and election officials,” the attorney said. “Voters who are erroneously challenged and harassed, but who are actually eligible to vote, will refrain from voting for fear of repercussions.”

Morgan said the information will be provided “at the soonest available time.” But he said that is not going to happen before the General Election, at least in part because of the burden on and lack of resources for the Secretary of State's Office.

The challengers, in filing suit, were not convinced.

“The defendants have failed to satisfy — and, indeed, cannot satisfy — their burden to show that fulfilling the request poses an unreasonable administrative burden,” their lawyers state.

An aide to Fontes said his office had not yet been formally served with the lawsuit. No date has been set for a hearing.

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