By Howard Fischer
Capitol Media Services
PHOENIX -- The Arizona Republican Party is challenging a little-known state law that allows people who have never lived in Arizona to to have a voice in who gets elected here.
In new court filings Monday, the state party and the Republican National Committee contend state lawmakers acted illegally in 2005 when they agreed to allow the children of Arizonans who are living overseas but still registered to vote here to cast a ballot, even if they have never set foot in the state.
There are provisions in the federal Uniformed and Overseas Voters Absentee Voting Act that do permit Americans residing overseas to vote by mail in federal elections in the state in which they had lived. That includes both those in the military as well as those currently living overseas.
But attorney Kory Langhofer said federal law still leaves it to the states to "prescribe substantive prerequisites'' for voting in both federal and state elections.
More to the point, he said the federal law says all this is contingent on meeting state requirements. And Langhofer contends the 2005 violates a provision in the Arizona Constitution which says voting is available only to those who have at some point resided in the state.
So now he wants the law voided.
This is more than an academic question.
Langhofer is citing data that appears to show that overseas voters -- including those who have never resided in the state -- skew heavily Democratic.
In Maricopa County, for example, he said just 18.2% of overseas voters are registered Republican. Another 51.3% are Democrats, 26.5% with no party affiliation and 4% who are signed up with other recognized parties.
By contrast, of the more than 2.6 million people currently registered to vote in the state's largest county, 35.5% are Republicans versus 28.2% Democrats.
How significant is all this is unclear.
A spokesman for Secretary of State Adrian Fontes said his office does not track how many people registered as overseas voters have never lived in Arizona.
But Fontes, a Democrat, lashed out at the Republicans for what he called "a deliberate attempt to suppress the voices of eligible voters,'' many of whom are the children of service members and U.S. diplomats overseas, targeting families "who have served this nation with honor.''
"We will vigorously defend the rights of those who call Arizona home and uphold the integrity of our electoral system against these brazen attempts at disenfranchisement,'' he said in a prepared statement.
Whatever the numbers, the issue is significant enough to cause Republicans to ask a Maricopa County Superior Court judge to void the law.
"The burden of being forced to compete under the weight of a state-imposed disadvantage if a cognizable legal injury,'' Langhofer wrote. And that, he said, is the case here, because it allows some number of people who are constitutionally ineligible to be registered -- with the majority of them Democrats -- to cast votes.
Langhofer also represents Gina Swoboda who is chair of the Republican Party of Arizona.
More to the point legally, she is a resident and qualified elector who intends to vote in the 2026 elections. And Langhofer said allowing those who have never resided in the state to vote "unlawfully dilutes the voting power of Ms. Swoboda and other qualified electors who satisfy the Arizona Constitution's residence requirements.''
RNC Chairman Michael Whatley is putting a definite political spin on all this, despite the fact that the 2005 law was sponsored by a Republican lawmaker and unanimously approved by the Republican-controlled Legislature.
"Democrats want to cheat in our elections by allowing votes from people who have never established legal residency,'' he said in a prepared statement. "The RNC is defending the rights of Arizona voters to stop this unconstitutional law in its tracks.''
The lawsuit says the question of how many of these voters there are -- and whether they actually can affect the outcome of any election -- is legally irrelevant.
"Even in the absence of actual injury, plaintiffs, as political party organizations that engage in voter registration efforts and participate in Arizona elections and (in the case of Ms. Swoboda), voters, have a direct legal interest in the enforcement and implementation of constitutional provisions and statutes that govern voter registration in the state of Arizona,'' Langhofer wrote. And he said the challenged law "directly affects those interests.''
The lawsuit asks not just that the statute be declared invalid but that Fontes' office takes action to ensure that the instructions on the forms used by overseas voters to register are clarified to show that those who have never resided in the state cannot vote in federal or state elections.
No date has been set for a hearing.
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