Secretary of State Adrian Fontes on Jan. 6, 2023, at an Arizona Chamber of Commerce and Industry event. Photo by Gage Skidmore (modified) | Flickr/CC BY-SA 2.0
A Maricopa County Superior Court Judge ruled Wednesday that Arizona Secretary of State Adrian Fontes must defend his decision to withhold the names of 218,000 voters who have been improperly registered to vote because of a glitch in the state’s driver’s license database.
The conservative group that requested the names of the voters, run by one of former President Donald Trump’s top legal aides, filed the lawsuit earlier this month seeking the information.
The decades-long glitch, which was first discovered last month, meant that some Arizonans who received a driver’s license before 1996 were inaccurately labeled as having provided proof of citizenship, which is a requirement to register to vote in the Grand Canyon State.
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The error in the database used by the state’s Motor Vehicles Division affects people with pre-1996 licenses who had received replacements. They had 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 listed as “other party.”
“The Court is sympathetic to the Secretary’s desire to slow this litigation down and address the issues after the upcoming election,” Maricopa County Superior Court Judge Scott A. Blaney said in his ruling. “The Secretary’s office is understandably busy during this election season, as is this Court. But the Court also notes that Plaintiff’s action seeks disclosure of a list(s) of nearly 220,000 Arizona voters that the Secretary has identified in press releases as voters who were registered to vote without providing required documentary proof of citizenship, which is a matter of statewide importance and public interest.”
Blaney noted that Arizona public record law favors disclosure and that the Secretary of State’s Office “bears the burden of overcoming the presumption favoring disclosure.”
Arizonans who cannot provide proof of citizenship in the state are only permitted to vote in federal races because voters in 2004 approved a ballot measure requiring proof of citizenship in order to register to vote.
Arizona is the only state that requires proof of citizenship to register to vote. Federal only voters in Arizona, like all voters in other states, sign a sworn statement pledging that they are U.S. citizens.
After Maricopa County Recorder Stephen Richer asked the Arizona Supreme Court last month to order county elections officials to send the affected voters — at the time, only 98,000 had been identified — a federal-only ballot, the high court ruled that there was nothing in state law allowing county recorders to unilaterally change the registration status of the voters.
But it did note that state law allows for challenges to individual voters’ registration status, and that county recorders should deal with any such challenges to these voters under that law.
The conservative non-profit America First Legal, led by Stephen Miller, a former senior advisor to Trump and the architect of his anti-immigration policies, is the one suing Fontes’ office to produce the records.
America First Legal and Jennifer Wright, the former head of the Arizona attorney general’s Election Integrity Unit, filed the lawsuit on behalf of Strong Communities Foundation of Arizona, a nonprofit led by conservative activist Merissa Hamilton.
According to the lawsuit, Hamilton’s group filed a records request after news of the glitch broke 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.” Fontes’ office said that releasing that information now “would create confusion, chaos, uncertainty and consternation among the public — all of which is avoidable, and indeed must be avoided amid an ongoing election during which we expect to receive record turnout.”
The group’s suit initially requested the records be released before early voting began on Oct. 9.
There is no evidence that a significant number of the voters affected, who have all lived in Arizona for decades, are undocumented immigrants. Data has indicated that voting by non-citizens is extremely rare.
An in-person evidentiary hearing is scheduled for Oct. 28, just eight days before the general election. Each side will have 90 minutes to make their case.
Gov. Katie Hobbs has ordered an independent audit of the Motor Vehicle Division’s registration system in light of the discovery.
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