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A Maricopa County Superior Court judge has ordered the names of 218,000 voters who are improperly registered to vote due to a data “glitch” can be released to a Trump-aligned group and GOP lawmakers who are seeking the data.
The conservative non-profit America First Legal, led by Stephen Miller, a former senior advisor to Trump and the architect of the former president’s anti-immigration policies, filed a lawsuit to compel Fontes’ office to produce the records after it refused to do so.
America First Legal and Jennifer Wright, the former head of the Arizona Attorney General’s Election Integrity Unit, represented Strong Communities Foundation of Arizona, a nonprofit led by conservative activist Merissa Hamilton, in the suit.
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According to the lawsuit, after learning about a glitch in the state’s driver’s license database that resulted in improper voter registration for more than 200,000 Arizonans — all of whom had been residents of the state for decades, and many registered for just as long — Hamilton’s group filed a public records request seeking “a subset of the Statewide Voter Registration Database that contains only those registered (active and inactive) voters that” were part of the data glitch.
A few days later, the Secretary of State’s Office responded, saying that the records “will be made available for inspection at the soonest available time and to the extent the law allows access. But no access will occur before the 2024 General Election.”
During a hearing earlier this week, Secretary of State Adrian Fontes argued that releasing the data could result in harassment or violence against those who appear on the list. He also argued that restricting the access of the list to county recorders, Hamilton and Republican leadership in the state legislature could also lead to voter information being misused or leaked to bad faith actors.
“At several points during his testimony, the Secretary argued that he would withhold the requested information if his act of withholding ‘could save just one life,’ or words to that effect,” Maricopa Superior Court Judge Scott Blaney wrote in his ruling. “If the Court were to adopt this standard — that a public official may withhold public records whenever he subjectively believes such withholding could somehow ‘save even one life’ — the Court would be adopting an impermissibly broad, arbitrary standard where the best interest of the state exception swallows the entirety of the Arizona Public Records law.”
The glitch, which was first discovered last month, meant that some Arizonans who received a driver’s license prior to 1996 were inaccurately labeled as having provided proof of citizenship, a requirement to register to vote in the Grand Canyon State beginning in 2005.
The error in the database used by the state’s Motor Vehicles Division affects people with pre-1996 licenses who have since received replacements. The voters affected have been registered to vote for decades, but were never required to prove their citizenship because of the “data coding oversight” in the system, according to the Secretary of State’s Office.
The office has said the affected voters include 79,000 Republicans, 61,000 Democrats and 76,000 who aren’t a member of either party.
Arizonans who cannot provide proof of U.S. citizenship are only permitted to vote in federal races, after voters in 2004 approved a ballot measure requiring proof of citizenship to register to vote.
Arizona is the only state that requires proof of citizenship to register to vote. Voting by undocumented immigrants is incredibly rare.
The court rejected Fontes’ claims that voters on the list could face potential harassment or violence, saying that the claims “were not credible and not supported by evidence.” Blaney also swept aside an argument made by Fontes that the records are not available in the form that Hamilton’s group requested.
“There is no exception under the Public Records Law for ‘imperfect or unreliable’ information,” Blaney said. “An agency cannot withhold records because it believes that these records contain imperfect or unreliable information. Indeed, when public agencies make mistakes, the public has an even greater interest in the disclosure of such information.”
The court ordered Fontes to produce the list by noon on Monday, along with communications with “county recorders that contain any dataset” of the impacted voters as well as communications about the issue with the Governor’s Office, Arizona Department of Transportation Motor Vehicle Division, Arizona Department of Health Services and the Arizona Legislature.
The lists or “information that includes any personally identifiable information” can only be distributed to county recorders, the president of the Arizona Senate, the speaker of the state House of Representatives and members of the House and Senate Elections committees. However, the court’s limitation on sharing of data ends after November 6.
The court also awarded Hamilton attorney fees, a common practice when someone wins a public records lawsuit against a government agency.
A spokesman for Fontes’ office said they are reviewing the decision and intend to file an appeal. The case will likely make its way to the Arizona Supreme Court.
Voting advocacy groups voiced their concern Thursday over the court’s decision.
“At this point, releasing the incomplete and unvetted names of the affected voters this close to the election will in no way benefit voters,” Alex Gulotta, All Voting is Local Arizona state director, said in a statement. “In fact, the decision could allow the opportunity for bad actors to target hundreds of thousands of eligible voters, whether through challenges or other threats. We are disappointed in the result because we know it will lead to more distractions and attempts to sabotage our elections.”
Hamilton and the conservative legal group behind the fight applauded the judge’s decision, calling it a win for transparency.
“When Secretary Fontes discovered the glitch that allowed 218,000 individuals to register without providing proof of citizenship, he should have immediately shared the list of affected individuals with Arizona’s county recorders, who are in charge of verifying the citizenship of voters,” James Rogers, America First Legal Senior Counsel, said in a statement. “Instead, he has jealously guarded the list, refusing to share it with anyone.”
“Our only intent has always been to ensure the Recorders and Legislative leadership can do their jobs!” Hamilton said on X, formerly Twitter. “And legal voters are enfranchised with confidence that their government is following the law in the operation of the elections!”
Although Hamilton’s group is nonpartisan and does not endorse candidates, it does advocate for conservative causes and the officials who push them. And Hamilton personally has endorsed a number of Republicans on social media.
“VOTE JUSTIN HEAP FOR RECORDER,” Hamilton wrote in one post on X. In another, she tells a user they “don’t deserve freedom” for sharing a story critical of Heap.
Heap is a Republican state representative from Mesa and the Republican candidate for Maricopa County Recorder in the November election. While Heap refuses to answer questions about whether he believes the 2020 and 2022 elections were stolen from Republican candidates, he has close ties to election deniers and has voted for proposed legislation based on election fraud conspiracy theories.
Hamilton, likewise, is closely allied with people who have pushed evidence-free claims about election fraud.
Hamilton told the court that she does not engage with any groups or people who promote violence or harassment. But she was closely tied to a group that, in 2022, collaborated with militia groups to monitor ballot drop boxes in Arizona.
The Arizona Mirror confirmed that Hamilton was an administrator of a group chat for America First Polling Project. Leaked AFPP chat logs, made available to reporters by the group Distributed Denial of Secrets, show how the organization worked with those militias and how election misinformation led members of the group to make violent threats.
Hamilton was asked repeatedly by an attorney representing Fontes’ office if she could guarantee that, if the data was released, it would not fall into the hands of anyone besides members of the Arizona Legislature and county recorders.
“You cannot guarantee to this court what these people will or will not do with it, can you?” attorney Craig Morgan asked Hamilton.
“I disagree with the basis of your question,” Hamilton answered, saying she refused to impugn the motives of members of the state legislature.
The Arizona Legislature has been a breeding ground for conspiracy theories surrounding elections, going back to 2020 when some state lawmakers held a news conference where they made spurious accusations of election fraud. They held the event at a Phoenix hotel because then-House Speaker Rusty Bowers would not allow it at the Capitol.
Months later, GOP leaders of the Arizona Senate hired conspiracy theorists with no experience in auditing or election administration to conduct a partisan hand-count of the 2020 election — based on the premise that the election had been stolen from Trump — only to find more votes for President Joe Biden than the original count, and no evidence of fraud.
And the Legislature’s two election committees have often amplified known election deniers and other conspiracy theorists.
Former and current members of the Legislature have also encouraged people to watch drop boxes for evidence of voter fraud to back up false claims that have been spread since 2020.
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