The Arizona secretary of state asked a judge not to release information about the 220,000 voters who may not have provided proof of citizenship due to a flaw in the way Arizona’s voter registration system pulls information from the state’s driver's license database.
The issue may have allowed some of those people to register to vote in all state and local elections, even though they did not provide the proof of citizenship required by Arizona law.
The records are being sought by a Republican-leaning voter education group represented by attorneys with ties to former President Donald Trump.
Strong Communities Action Foundation of Arizona, which also goes by EZAZ.org, argues the names of impacted voters should be considered a public record.
But Secretary of State Adrian Fontes, whose office denied the group’s records request, told Maricopa County Superior Court Judge Scott Blane his office still doesn't have a full, verifiable list of voters affected by the glitch, which originated in the driver’s license database.
That database is managed by the Department of Transportation’s Motor Vehicles Division, not the Secretary of State’s Office.
“It would be virtually impossible for us to be able to do what the plaintiffs are asking us to do. A, because we don't have control; B, we don't have a list; C, we don't have the resources; and D, I'm scared to death for my voters,” Fontes said.
Fontes said that, even when his office receives completed records from the MVD, he would have to run that information by election officials in the state’s 15 counties to verify whether the potentially affected voters have provided the proof of citizenship required by state law.
Those county officials, and his office, don’t have the manpower to perform that work right now, he said.
“These folks are in the middle of an election right now,” he said. “This is the single most busy time that any of these people will see in any 24-month cycle.”
But James Rogers, EZAZ.org’s attorney, argued the Secretary of State’s Office has possession of at least some of the information the group is seeking. He pointed to press releases issued by the office discussing the ways in which it has worked to rectify the issue after the Maricopa County Recorder’s Office first discovered the glitch in September.
Those releases showed an initial estimate of 98,000 impacted voters that was updated to about 218,000 voters on Sept. 30.
Fontes said the numbers in those releases were “guestimated,” and acknowledged the releases may have been poorly worded. But he maintained his office does not have a verifiable list of voters who were allowed to register to vote even though they have not provided proof of citizenship.
But Fontes acknowledged that his office did share information with counties that included some names from the initial list of 98,000 potentially affected voters. He said that information included names of out-of-state voters, such as those in the military, and those on the Active Early Voting list that was shared before deadlines to send out those ballots.
Rogers asked Blaney to force the secretary of state to at least release that information.
But, beyond the logistical problems with compiling the information EZAZ.org seeks, Fontes’ attorney, Craig Morgan, said the secretary of state should not be forced to release any information about affected voters now, because it could lead to threats and harassment by those accusing them of voting illegally, even though the Supreme Court has already ruled they can vote a full ballot this year.
Morgan pointed to social media posts that include threats of violence based on disproven election fraud conspiracy theories. He also cited doxxing and other threats faced by Fontes and other election officials.
“I don't want blood on my hands,” Fontes said of the reasoning behind denying the records request.
Morgan said those safety concerns justify denying the records request under exceptions to Arizona’s Public Records Law. That includes exceptions that are “in the best interest of the state” and that will prevent an invasion of an individual’s privacy.
But Rogers argued the secretary of state provided no evidence that EZAZ plans to abuse the records, pointing out that the social media posts cited by Morgan did not involve the group.
“Their arguments are based on the premise that easyaz.org is going to take this list and do something uh, unlawful with it, and there's no there's no evidence for that,” Rogers said. “They presented no evidence to confirm that supposition. It's just based on conspiracy theory.”
Merissa Hamilton, the group’s founder, said she would only release the information to county election officials and leadership at the Arizona Legislature, including the chairs of elections committees in the Arizona House and Senate.
However, Fontes argued that even disclosure to the Legislature could put individuals on the list at risk, citing social media posts by some lawmakers.
Sen. Wendy Rogers (R-Flagstaff), for instance, chairs the Senate Elections Committee and has regularly posted false information claiming widespread election fraud impacted past elections.
But attorney James Rogers argued those fears did not justify holding the records back.
“If a public agency had the right to deny any public records request it wanted based on unsupported hypothetical theories about what might happen with information, then the interest of the state exception would eliminate the entire public records law,” he said.