By Howard Fischer
Capitol Media Services
PHOENIX -- The Arizona Supreme Court is being asked to decide whether close to 100,000 registered voters will be able to cast a ballot in upcoming state and local elections.
A pair of lawsuits is asking the justices to decide how the state and counties must deal with the fact that there is not the evidence that close to one out of every 45 registered voters have not provided the legally required "documented proof of citizenship.'' That makes them legally ineligible to vote a full ballot under the terms of a law that took effect Jan. 24, 2005.
And more than a fair share of them are between 45 and 60, with the lion's share being Republicans.
Maricopa County Recorder Stephen Richer who filed the first lawsuit Tuesday wants the court to declare that unless the the affected individuals provide citizenship proof they will be able to vote this year only on federal races. That's because, unlike Arizona law, federal statutes have no such proof-of-citizenship requirement to cast a ballot for president, Senate or House.
"I understand that these voters have done nothing wrong,'' he said. But Richer, a Republican who was just defeated in the GOP primary in his bid for another term, said that they do not fall into any existing exemptions. And without evidence of satisfactory proof of citizenship, they should not be allowed to vote on statewide, legislative and local candidates as well as on ballot propositions.
But Democratic Secretary of State Adrian Fontes who intends to file legal papers Wednesday said there is no reason to believe that virtually all of these people, many of whom have been voting for years, are not actually citizens -- even if the paperwork is missing.
"I am unwilling to disenfranchise this many voters by limiting them, suddenly, and with little notice, to a federal only ballot when none of them had actual notice of or blame for this issue,'' he said.
But Richer and Fontes do share a common goal: Get a clear decision from the Supreme Court -- perhaps by the end of the week.
Speed is crucial.
Overseas ballots are supposed to go out by Friday. And early ballots are due to be mailed Oct. 9.
What's behind the last-minute scramble is that a check of records by Richer's office found that someone who was presumed registered to vote in all elections had never provided the "documented proof of citizenship'' required under the 2005 law.
Fontes said that discovery led his own agency to take a closer look at others on the voter rolls. And what his staff found, he said, was something close to 98,000 who are in a similar situation.
The secretary of state stressed this wasn't intentional, saying many of these people have been voting for years -- and their ballots have been accepted -- under the premise they were in compliance with the law.
Still, it is likely to rekindle complaints by some who insist that the state's election rolls are packed with people who are ineligible. That includes a federal court lawsuit by a conservative group which is accusing all 15 county recorders of failing to do their jobs to ensure that only citizens are voting.
"This has already spurred new conspiracy theories about this election,'' Fontes said Tuesday. "But those conspiracy theories are just as good as all the other conspiracy theories are,'' he said, calling any evidence that non-citizens are voting here or elsewhere "vanishingly rare.''
This issue starts with that 2005 voter-approved law which imposed the state's first-ever requirement for proof of citizenship to register. That's a requirement that exists nowhere else in the country
But that law also says anyone registering from that point forward who already had a driver's license issued after Oct, 1, 1996 is presumed to be legally registered. That's the effective date of a law signed by then-Gov. Jan Brewer, that individuals needed to prove legal presence to get a license.
And the same law essentially grandfathered in as presumed to be a citizen anyone whose license is older than that, all without having to provide new citizenship proof.
The problem involves those who registered to vote after that 2005 effective date but whose driver licenses predate 1996.
As new registrants, they are supposed to provide documentary proof of citizenship, regardless of the age of their license. Ditto those who move to another county and reregister to vote there.
That, said Fontes, normally triggers a check of MVD records.
Richer said the problem is that some people who have pre-1996 licenses -- the ones without proof of citizenship -- have gone to MVD for a duplicate license or to change their address.
The agency, however, put the date they issued the revised license into their database as the date the license was originally issued.
That meant the database reflected they have a post-1996 license -- meaning they had provided proof of citizenship -- when, in fact, they never had. And county election officials, relying on those MVD records when facing someone trying to register to vote after 2004, never asked for any citizenship proof.
It only came to light earlier this month when Maricopa County was checking the citizenship of one person who had one of those older licenses who was updating his voter registration. It turned out that this person was a lawfully permanent resident -- entitled to an Arizona license under the 1996 law -- but not a citizen, with the issue being that MVD coding.
Fontes said despite the registration, that person never cast a ballot.
Now aware of the problem, Fontes said further checks were made across the system. And he believes there are about 98,000 whose records reflect the lack of submission of documentary proof of citizenship.
"We don't have any reason to believe that anyone in this gap is not an eligible voter,'' Fontes said.
"We don't have any reason to believe that they're not eligible citizens in spite of the fact that we did find one,'' he continued. "All we know is they fit into this category and all of this requires more research.''
But with time running out, the plan was hatched for the dual lawsuits to get a definitive decision as soon as possible from the Supreme Court as to whether these people can cast a full ballot or only vote for federal candidates.
For the moment, there's nothing those who think they are affected can do other than wait.
Fontes said if the justices conclude that these people are entitled to vote only in federal races there will be an outreach effort to let them know. He said there also are plans to set up an online website where individuals can upload legally required proof of citizenship like copies of a birth certificate, passport, naturalization documents or tribal enrollment cards.
And those same documents can be presented right through 7 p.m. on Election Day.
None of that satisfied Merissa Hamilton, co-founder of Strong Communities Foundation, the group that filed the lawsuit against all county recorders contending they are not doing what is required to purge their voter rolls of those who are not citizens. She took a swat at Richer for failing to be proactive once he learned of the problem last week.
"He should also send out letters,'' Hamilton said. "That's irresponsible.''
But Fontes said it would be premature of any recorder to do that ahead of a Supreme Court ruling.
Not everyone with a pre-1996 license falls into this questionable category, regardless of whether or not they updated or changed their voter registration.
Fontes said many people who already had a pre-1996 license have since applied for a Real ID. That is an enhanced driver's license that, among other things, will be required next year to board a commercial aircraft.
More to the point, an applicant for a Real ID has to provide proof of citizenship like a passport, meaning they are -- and remain -- eligible to vote in all elections.
Fontes also said none of this has any legal effect on prior elections, even if it turns out that someone without the required proof of citizenship voted on a statewide race. He said courts presume that there has to be finality to elections.
Fontes said that, given this largely affects those who first registered before 1996, most of those affected are in the 45 to 60 year age range. He also said that demographic is far more likely to be Republican.
A court ruling limiting them to a federal-only ballot could have an effect on closely contested legislative races.
His office also says that about 55% of those affected are from Maricopa County, with 15% from Pima County, close to 9% from Pinal County, about 5% from Yavapai County and the remainder in proportion to the remaining counties.
Gov. Katie Hobbs, in a prepared statement, said she identified and fixed what she called an "administrative error'' dating back to 2004.
"As soon as I became aware of the problem, I directed MVD to aggressively develop and implement a solution,'' she said. Hobbs also said that she "will be implementing an independent audit to ensure that MVD systems are functioning as necessary to support voter registration.''
All of this is occurring as some Republicans on the state and national level, without citing proof, contend that people who are not citizens are affecting federal elections. They are pushing for Congress to appove a national law to require proof of citizenship to vote in federal elections.
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