Judge dismisses case aiming to purge hundreds of thousands of Arizonans from voter rolls

A federal judge has tossed out a claim by the head of the Arizona Republican Party and two GOP allies that there are at least 500,000 -- and possibly 1.27 million -- people on voter registration rolls who shouldn't be there.

The trio allege Democratic Secretary of State Adrian Fontes is breaking federal law by failing to follow procedures to purge the rolls of people who are dead and those they have moved.

That claim is based on computations by attorney Dallin Holt based on what he said is an analysis of records from the U.S. Census Bureau. And the result, he told U.S. District Court Judge Dominic Lanza, is that the votes of his clients, who are legally registered, are diluted.

But Lanza did not let them present all those calculations. Instead, he called their claims that whatever Fontes is or is not doing "speculative.''

In fact, the judge said, even Holt admitted that his clients are not alleging that these "hypothetical ineligible votes'' actually are being cast -- and in a way that disproportionately harms their "partisan electoral interests.''

And Lanza rejected a parallel claim that Fontes' alleged failure to maintain voter registration rolls as required by the National Voter Registration Act diminishes their "confidence'' in the electoral process.

“The Court’s dismissal is as troublesome as it is incorrect,” Holt said in an email. “Based on data provided by the US Census Bureau and the Arizona Secretary of State, it is obvious that Secretary Fontes has failed to remove from Arizona’s voter file many voters who are either deceased or no longer reside in Arizona or the county where they were registered—Plaintiffs have already been, and are presently, harmed by this. It is unfortunate and telling that instead of simply maintaining Arizona’s voter rolls in accordance with the law, Secretary Fontes has chosen to dodge responsibility. We will continue to review the Court’s Order and will respond in due course.”

Fontes, however, called the lawsuit "politically motivated'' and took a slap at "those who waste taxpayer resources on lawsuits for their own personal political interests.''

At the heart of the issue is a requirement in federal law that the state has a program to make a"reasonable effort to remove the names of ineligible voters from the official list.'' That requirement specifically includes those who have died and those who have moved.

Holt represents Gina Swoboda, the head of the state GOP along with Scot Mussi, president of the Republican-aligned Free Enterprise Club, and Steven Gaynor who made an unsuccessful run as a Republican for secretary of state in 2018 and was briefly in the 2022 gubernatorial race before withdrawing.

He argued that an analysis of data from the U.S. Census Bureau finds several counties have voter registration rates that are "implausibly high,'' arguing that there could be up to 1.27 million registered voters who are deceased or no longer live in the state.

Separately, Holt said more than 750,000 notices were sent out in Maricopa to voters to determine if they still live where they were registered. In the case of about 620,000, he said, there is no record of what happened or whether they were removed.

That, Holt argued, means there are some 500,000 unaccounted-for registered voters remaining on the rolls primarily attributable to voters who voted or voters who failed to respond -- both methods which he said are supposed to be used to maintain and update the rolls.

Holt acknowledged he did not have evidence of specific people who are on the rolls -- which are public -- who actually are dead or have moved.

But he said that's not necessary for him to argue that Fontes is not doing what the federal law requires. That, said Holt, is proven by what he said is the disparity between the Census data and the voter rolls.

"It's clear that the secretary doesn't have a process in place to do this,'' he said. Holt said that data was enough to get his clients their day in court.

That, however, is not what the judge concluded. In fact, Lanza said, they're not even legally entitled to bring the claim in the first place.

The key he said, is what the courts call "standing'' -- a showing they actually have been harmed.

"A citizen may not sue based only on an asserted right to have the government act in accordance with law,'' the judge wrote. "Nor may citizens sue merely because their legal objection is accompanied by a strong moral, ideological, or policy objection to a government action.''

What that means is that even if Fontes violated the NVRA -- something that Fontes disputes -- that doesn't give the challengers a right to sue.

"Plaintiffs still must alleged that the challenged conduct has caused them to suffer a concrete and particularized injury that is actual and imminent, not conjectural or hypothetical,'' Lanza wrote.

In an effort to meet that legal burden, Holt argued that his clients are currently harmed -- and will be harmed in the future -- by "vote dilution.'' But Lanza said there is no evidence that will happen, even if rolls are not properly maintained.

"Such dilution could result only after: (1) an ineligible voter requests and early ballot or presents at a polling place; (2) casts a ballot; (3) that ineligible ballot is tabulated; and (4) sufficient other ineligible voters engage in the same series of steps in a number sufficient to 'dilute' plaintiffs' votes,'' the judge said.

And what's in the lawsuit, Lanza said, falls short.

"The complaint conspicuously fails to allege that any of these steps have actually occurred in Arizona,'' he said. "Instead, it simply speculates that the alleged lack of voter-maintenance means ineligible voters have an (ITALICS) opportunity (ROMAN) to vote in Arizona elections, (ITALICS) risking (ROMAN) the dilute of plaintiffs' legitimate votes,'' the judge said.

Lanza also rejected arguments by challengers that they are injured because less-than-accurate voter registration rolls mean they have to spend more money on things like voter education and monitoring elections for fraud and abuse. He called these "vague claims that a policy hampers its mission.''