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Republican leaders are siding with Arizona’s Democratic secretary of state in a legal dispute over whether roughly 97,000 voters should get a full ballot this election, arguing that, despite the uncertainty that those voters ever turned in proof of citizenship, they still have a right to back their preferred candidates in local and state elections.
“Nearly 100,000 Arizona voters should not be penalized for a mistake made by the government. We will not stand by as voters are disenfranchised, especially so close to an election,” Gina Swoboda, the chair of the state’s Republican Party, said in a press release accompanying the announcement of the group’s filing calling on the Arizona Supreme Court to not penalize the voters who inadvertently are not properly registered to vote.
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A law passed by voters in 2004 requires Arizonans to provide evidence of their citizenship status to be eligible to vote in local and state elections. The U.S. Supreme Court prohibited that same rule from being applied to federal elections, forcing Arizona to adopt a bifurcated system that allows voters who haven’t adequately proven their citizenship status to receive federal-only ballots.
The ability of almost 100,000 voters to obtain full ballots was jeopardized by the discovery of a 20-year-old coding glitch that affects how Arizona’s Motor Vehicle Division shares information with the state’s voter registration database. Arizonans who signed up for a driver’s license before October 1996 and then received a duplicate replacement that was used to register to vote after 2004 — when voter registration requirements were updated — were marked as having sufficient proof of citizenship, even though they had never actually proved they were citizens to get their license.
Earlier this week, Maricopa County Recorder Stephen Richer, a Republican, filed an emergency petition for special action with the state Supreme Court asking the justices to order that the affected voters should qualify for federal-only and not full ballots, unless they remedy the issue themselves by providing evidence of their citizenship status. While 97,000 is just a fraction of Arizona’s 4.1 million total voters, leaving even that number of votes on the table is significant in a state that’s become known for its tight races.
And Republicans sounded the alarm over the fact that the group is made up of older voters who likely lean Republican.
On Wednesday, Secretary of State Adrian Fontes weighed in on the debate. In his filing, Fontes advocated for preserving the status quo during the election and verifying citizenship statuses afterwards. Election deadlines are around the corner, wrote his attorney, Craig Morgan, and introducing new requirements this late in the year will only cause confusion and chaos. Ballots for military and overseas voters are set to be mailed this Saturday, and the last day to register to vote is Oct. 7, just two weeks away. Early voting begins on Oct. 9.
On top of that, Fontes added, there’s no reason to suspect that the majority of the 97,000 are non-citizens. In fact, most of the evidence points to most of them being in the country lawfully and being eligible to vote.
Multiple studies have shown that non-citizen voting is extremely rare. And even if the affected voters weren’t asked to provide proof of citizenship when registering to vote, they were still required to sign a statement affirming their citizenship status under penalty of perjury.
“To deprive voters of the franchise, when there is no actual proof they should be so deprived, is undemocratic, unconstitutional, and must be avoided at all costs,” Morgan wrote.
Fontes also pointed out that Richer’s request that the court downgrade the 97,000 voters from full ballots to federal-only ballots would require the court to wade into lawmaking — something that isn’t within its authority and it should avoid. State legislators have passed laws directing election officials on how to handle voter list maintenance, how to move voters from active to inactive voting status and even how to cancel invalid registrations, but no state law exists detailing how to revise a voter’s eligibility.
Republicans backed Fontes’ argument, urging the court to keep things the way they’ve been for the past 20 years. Attorney Andrew Gould, representing the Arizona Republican Party in an amicus brief, told the justices that preventing the voters from receiving full ballots would violate federal protections.
The First and Fourteenth Amendments guarantee a person’s right to vote without undue burdens, and the National Voter Registration Act prohibits invalidating the registrations of voters less than 90 days out from any election, he noted. This year, that deadline was in August. Government clerical errors aren’t included in the list of exceptions, either.
“The governmental failure to enforce state law regarding proof of citizenship must be corrected — but not on the eve of an election where doing so may cause massive voter disenfranchisement and would be unlawful,” Gould wrote.
Republican legislative leaders also joined Fontes in requesting that the Supreme Court preserve the ability of the affected voters to vote for local candidates. In a motion to intervene, Senate President Warren Petersen and House Speaker Ben Toma said they agreed with Fontes’ assessment of the situation, though they added that they might have different “philosophical and institutional perspectives” that warranted their inclusion in the case. The duo argued that they should be involved because the debate concerns due process and fair notice conflicts with Arizona’s voter ID law and, as lawmakers, they’re best situated to take on the constitutionality of state laws.
Until the Arizona Supreme Court issues a ruling in the matter, the ballots of 97,000 Arizonans remain in limbo. In the meantime, Fontes has told county recorders to make no changes, and has instructed them to shift operations to identifying affected voters if the high court disagrees with his argument.
U.S. Rep. Greg Stanton, a Phoenix Democrat, sent a letter to the U.S. Department of Homeland Security requesting help for the Arizona Secretary of State’s Office in confirming the thousands of missing citizenship statuses.
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